2013 Annual Convention. Traffic Law Update

Transcription

1 2013 Annual Convention Traffic Law Update Traffic Law Committee 3.0 General CLE Hours May 8-10, 2013 Cleveland

2 CONTRIBUTORS Kenneth A. Bossin Attorney at Law Cleveland, Ohio Mr. Bossin received his undergraduate degree from the University of Missouri and his JD from Cleveland State University Cleveland-Marshall College of Law. His professional memberships include the Ohio State Bar Association, Cleveland Metropolitan Bar Association, Ohio Association of Criminal Defense Lawyers, Cuyahoga County Criminal Defense Lawyers, National Association of Criminal Defense Lawyers, and National College of DUI Defense. Mr. Bossin served as an acting part-time judge in the Lyndhurst Municipal Court from 1985 to 1999, and in 2004, he authored articles on Law You Can Use for the Ohio State Bar Association. He is a frequent lecturer at traffic and DUI seminars throughout Ohio. In 2005, Mr. Bossin obtained a Certificate of Training as an Instructor for the National Highway Traffic Safety Administration DWI Detection and Standardized Field Sobriety Testing (SFST) Program and also obtained a Certificate of Competency in the Operation, Diagnostic Verification, and Calibration for the BAC DataMaster Breath Alcohol Testing Instrument. He has served as a consultant (expert) regarding Field Sobriety Testing in Aggravated Vehicular Homicide and other OVI cases and has testified as an expert on Field Sobriety Testing in Lake County and Cuyahoga County Common Pleas Courts and various municipal courts. Mr. Bossin also served as an instructor in teaching DWI detection and SFSTs in June For additional information, please visit Cleve M. Johnson Attorney at Law Columbus, Ohio Mr. Johnson received his BA from The Ohio State University and his JD from Capital University Law School. His professional memberships include the National College for DUI Defense, Ohio Association of Criminal Defense Lawyers, Ohio State Bar Association (Chair, Traffic Law Committee), Columbus Bar Association, Central Ohio Association of Criminal Defense Lawyers, Governor s Task Force on Impaired Driving, and Ohio Criminal Sentencing Commission (Traffic Subcommittee). Mr. Johnson has been a criminal defense attorney since 1979 and is a frequent contributor to legal education seminars on topics relating to OVI and traffic law. He frequently testifies before committees of Ohio legislature and is certified to operate, calibrate, and perform diagnostic verification on a DataMaster breath-testing machine. For additional information, please visit Honorable Robert H. Lyons Butler County Area I Court Oxford, Ohio Lyons & Lyons Co. LPA Westchester, Ohio Judge Lyons received his BS from Miami University and his JD from the Northern Kentucky University Salmon P. Chase College of Law. His professional memberships include the Ohio State Bar Association, Butler County Bar Association, Cincinnati Bar Association, Ohio Association of Criminal Defense Lawyers, National Association of Criminal Defense Lawyers, Association of County/Municipal Court Judges, International Judges Association, and Greater Cincinnati Criminal Defense Lawyers Association. Judge Lyons has been the Butler County Area I Court Judge since He is the founder of Lyons & Lyons, and he practices primarily in the area of criminal defense with an emphasis on OVI. Judge Lyons is a certified instructor for National Highway Traffic Safety Administration DWI Detection and Standardized Field Sobriety Testing. For additional information, please visit www. lyonsandlyonslaw.com.

3 Jeffrey C. Meadows Lyons & Lyons Co. LPA West Chester, Ohio Mr. Meadows received his BA from the University of Cincinnati and his JD from the University of Miami School of Law. His professional memberships include the Ohio State Bar Association, Hamilton County Bar Association, Ohio Association of Criminal Defense Lawyers, National Association for Criminal Defense Lawyers, National College for DUI Defense, and Greater Cincinnati Criminal Defense Lawyers Association. Mr. Meadows s primary area of practice is OVI. Over the last decade, he has served in the lead role for his firm in aggressive DUI/DWI/OMVI/OVI defense. Mr. Meadows is a frequent speaker on this subject. For more information, please visit Honorable Kenneth R. Spanagel Parma Municipal Court Parma, Ohio Judge Spanagel received his BS from Northwestern University and his JD from Case Western Reserve University School of Law. His professional memberships include the Ohio State Bar Association (Judicial Administration and Legal Reform Committee; Traffic Law Committee), Parma Bar Association (Trustee; CLE Committee), Cleveland Metropolitan Bar Association, Ohio State Bar Foundation (Life Fellow), Association of Municipal/County Court Judges of Ohio (Editorial Board, The Chronicle), Ohio Traffic Rules Review Commission (Multi-Count Uniform Traffic Ticket Subcommittee), and Government Assistance Program (Trained Mediator). Judge Spanagel serves as Presiding and Administrative Judge of the Parma Municipal Court. He received the Ohio State Bar Association s Award of Merit for Parma Bar Association activities and the President s Award from the Association of Municipal/County Court Judges of Ohio. Judge Spanagel is a frequent contributor to CLE programs for numerous organizations, including the Cleveland Metropolitan Bar Association, Parma Bar Association, OSBA CLE, and the Academy of Continuing Legal Education, as well as school programs and the Cleveland Bar Association s People s Law School.

4 Traffic Law Update Session # 607 Chapter 1 Intoxilyzer 8000 Kenneth A. Bossin State of Ohio v. Vega State of Ohio v. Reid (Reid II) Results of Special Testing of the CMI Inc. Intoxilyzer 8000 Evidential Breath Alcohol Testing Device State of Ohio v. Reid State of Ohio v. Collazo State of Ohio v. Yanchar State of Ohio v. Moore State of Ohio v. Muchmore Chapter 2 Important Changes in Commercial Driver s Legislation Cleve M. Johnson Legislation Effective Date Net Effect of the New Law What Happens in Court Controls What Will Happen at the BMV The New Law in a Nutshell Interpreting the New Legislation How Does the BMV Interpret the New Law? The BMV s Position Violates the Double Jeopardy Clause How an OVI Violation Can Legitimately Cause a Disqualification The Constitutional Problem with Typing Disqualification to ALS How to Save Your Client s CDL How to Save Your Client s CDL and His Job Were the Proper ALS Warnings Given? Are New 2255s Required? What If the CDL Section of the 2255 Is Not Completed? No Disqualification in Blood and Urine Cases Two-, Not Three-, Hour Window on CDL Tests Look-Back Period Reversals of Lifetime Disqualifications Are Possible Credit for Court Suspension Refusing the Test Is a Crime for CDL Holders Appeal Time Stay of Disqualification and Procedure The Special Case of CDL School Bus Drivers Appendix In the Matter of Anders v. Ohio Bur. of Motor Vehicles Potential Relevant Issues from Prior CDL Outlines Outline of CDL Changes in HB New Definitions for Serious Traffic Violations Some Consequences of Serious Violations Physical Control and CDLs

5 Chapter 3 Changes in Traffic and Criminal Law: Legislation and Proposed Rules Honorable Kenneth R. Spanagel Changes in Traffic and Criminal Law: Legislation and Proposed Rules PowerPoint Presentation

6 Intoxilyzer 8000: Is It Alive and Well in Ohio? 1 Kenneth A. Bossin Attorney at Law Cleveland, Ohio

7 Page Ohio St.3d 185 (Ohio 1984) 465 N.E.2d 1303 The STATE of Ohio, Appellant, v. VEGA, Appellee. No Supreme Court of Ohio. July 25, 1984 [465 N.E.2d 1304] Pete A. Vega, appellee, was charged on November 9, 1982 with operating a motor vehicle while under the influence of alcohol in violation of R.C An intoxilyzer test was administered; appellee tested at.17 of one percent of blood alcohol by weight. Appellee pleaded not guilty. Prior to trial, on April 12, 1983, the state filed a motion in limine to exclude the testimony of appellee s proposed expert witness, Dr. Walter J. Frajola. The trial court delayed its ruling. A jury trial was commenced in the Municipal Court of New Philadelphia, Ohio, on April 12, When appellee called Dr. Frajola as a witness, the trial judge did not permit him to testify. The court in its judgment entry found that * * * Dr. Frajola had no personal knowledge of the particular intoxilyzer instrument utilized in the administration of the breath test to * * * [appellee] * * * and, consequently, Dr. Frajola s testimony would have been relating, generally, to the reliability of the intoxilyzer and as such must be excluded upon the authority of State v. Grimes * * * [ (Dec. 30, 1980), Franklin App. No. 80AP-651, unreported], which this court finds persuasive in its reasoning and the rule of law * * * [which] shall be applied in this jurisdiction. Appellee then proffered Dr. Frajola s testimony. Appellee was subsequently convicted and sentenced accordingly. Appellee filed a notice of appeal on May 18, [465 N.E.2d 1305] In a split decision, the court reversed, holding that an accused may present expert testimony to attack the reliability of intoxilyzers in general. The court stated that * * * R.C (B), while replacing the requirement of Page 186 expert testimony by statutory presumption, does so only insofar as the state is concerned. * * * There is no prohibition (nor can there ever be constitutionally) against the presentation of expert medical testimony on the part of the accused to Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.1

8 show the nonexistence of a nexus between the testing result and the ultimate physical condition of the accused. The court concluded, then, that [t]o the extent that the appellant was prevented from going forward with his evidence on the element of whether or not he was under the influence of alcohol, the state was relieved of its constitutional duty to prove appellant guilty beyond a reasonable doubt on that element of the offense of operating a motor vehicle while under the influence of alcohol * * *. In dissent, Judge Hoffman reasoned that inasmuch as the proffered testimony was general and speculative in nature and did not speak to the specific test of the specific accused at trial, the testimony was properly excluded because R.C provides for the admission of breath tests if properly administered. He further stated that no constitutional right was destroyed as a result because the accused has no such right to introduce nonrelevant general testimony. The court of appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Franklin County in State v. Grimes, supra, and the judgment of the Court of Appeals for Auglaize County in State v. Balderaz (May 25, 1983), No , unreported, certified the record of the case to this court for review and final determination. Stewart C. Piotter, Peninsula, for appellant. Leslie R. Early, New Philadelphia, for appellee. PER CURIAM The issue presented is whether an accused may use expert testimony to attack the general reliability of intoxilyzers as valid, reliable breath testing machines in view of the fact that the General Assembly has legislatively provided for the admission of such tests in R.C if analyzed in accordance with methods approved by the Director of Health. This court, for the reasons that follow, reverses the decision of the court of appeals and holds that an accused is not denied his constitutional right to present a defense nor is the state relieved of its burden of proving guilt beyond a reasonable doubt where a trial judge does not permit expert testimony to attack the reliability of intoxilyzers in general. The wide acceptance by courts of alcohol breath tests in drunk driving cases is well-documented. This court so acknowledged, stating in Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 123, 239 N.E.2d 40 [44 O.O.2d 119], as follows: * * * such tests are today generally recognized as being reasonably reliable on the issue of intoxication when conducted with proper equipment and by competent operators. In recent years, the courts have been aided by the enactment of statutes dealing with this matter. In Ohio, the General Assembly has legislatively provided for the admission of various alcohol determinative tests in R.C. 1.2 Traffic Law Update

9 Page [1] This section provided in pertinent part that [i]n any criminal prosecution for a violation of this section * * * the court may admit evidence on the concentration of alcohol in the defendant s blood at the time of the alleged violation as shown by chemical analysis of the defendant s * * * breath * * * withdrawn within two hours of the time of such alleged violation. * * * Such bodily substance shall be analyzed in accordance with methods approved by the director of health, by an individual possessing a valid permit issued by the director of health pursuant to R.C of the Revised Code. [465 N.E.2d 1306] R.C authorizes the Director of Health to determine suitable methods for breath alcohol analysis. By virtue of Ohio Adm.Code (B)(2) the intoxilyzer has been approved as one of several breath testing instruments. [2] In State v. Myers (1971), 26 Ohio St.2d 190, , 271 N.E.2d 245 [55 O.O.2d 447], this court examined the nature of the presumption established by R.C : In * * * [providing that a defendant will be presumed to be under the influence of alcohol if there is a concentration of fifteen hundredths or above of one percent or more by weight in his blood], the General Assembly has expressed its conviction that the relationship between the objective determination by chemical test of the percentage of alcohol by weight in the blood (.15% or more), and its effect on people, is so well scientifically established that it need not be demonstrated by evidence, and may take the place of evidence at trial. The purpose of the presumption is to eliminate the need for expert testimony which would otherwise be necessary to relate the numerical figure representing a percentage of alcohol by weight in the blood as shown by the result of a chemical test, with the common understanding of being under the influence of alcohol. * * * [Citations omitted.] When the test results are in evidence, the evidence that the presumption supplies is the correlation between a scientific fact, the results of the test, and human behavior; that is, that all persons who test.15% or more are under the influence of alcohol. In Myers, the court recognized, at page 199, 271 N.E.2d 245, that this statutory presumption not only acts to supplant expert testimony as to test results, it also * * * bears directly on an issue material to the case, i.e., whether defendant was under the influence of alcohol. * * * The impact the presumption provides, given its real intendment, is that it tends to prove whether defendant was under the influence of alcohol. It must be stressed that while R.C creates the presumption that one is under the influence of alcohol if there is a specific concentration of alcohol by weight in one s blood, such presumption is rebuttable. As Professor Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.3

10 Page 188 McCormick states in his treatise on Evidence (2 Ed. Cleary Ed.1972) 513, Section 209: It is important to remember that none of these tests is conclusive, that it is always open to the opponent to adduce countervailing evidence of his sobriety. Likewise, it is important to remember that the tests are not the sole evidence admissible on either side of the issue. Field sobriety tests, * * * sound motion pictures and videotape recordings, may all supplement the tests in producing a reliable judgment on the issue of intoxication. (Footnotes omitted.) (Emphasis added.) In the instant case, the appellee does not dispute the fact that the General Assembly may delegate to the Director of Health the determination as to the mechanism which would be used for measuring blood alcohol content of an individual. Rather, the appellee disputes that he is bound by the director s determination that the intoxilyzer is generally a reliable, valid, breath testing instrument. The appellee argues that while the initial determination that a certain machine is qualified to analyze a person s breath may be proper, the ultimate issue of guilt or innocence of an accused is a judicial function: the rulemaking power of the Director of Health may never deprive a defendant of the right to present a defense to the charge. The appellee essentially asserts that if he is denied the opportunity to make a general attack upon that determination, he will be denied his constitutional right to present a defense and to have his guilt proved beyond a reasonable doubt. Appellee has misconstrued the impact of the enactment of R.C by the General Assembly. Professor McCormick, in addressing statutes similar to R.C , [465 N.E.2d 1307] has explained as follows at pages 511 and 513: The subjects of standards of proof and testing are now largely controlled by statute[s] * * *. In the process, most of the original questions as to the general reliability of the tests and the relation between blood-alcohol levels and driver impairment have been answered, expressly or impliedly, by the legislatures. Under [such] * * * statutes, the questions of relevancy, and to a large extent of weight, of the evidence, have thus been legislatively resolved. The presumptions have been upheld by the courts * * * and the prescription for test procedures adopted by the state health agency has been taken as acceptance of the general reliability of such procedures in showing blood-alcohol content. (Footnotes omitted.) (Emphasis added.) Appellee s position simply fails to afford the legislative determination that intoxilyzer tests are proper detective devices the respect it deserves. As McCormick so recognized, legislatures, by enacting statutes such as R.C , have legislatively resolved the questions of the reliability and relevancy of intoxilyzer tests. And, as Judge Stephenson stated in State v. Brockway (1981), 2 Ohio App.3d 227, 232, 441 N.E.2d 602: 1.4 Traffic Law Update

11 * * * [The judiciary must recognize] the necessary legislative determination that breath tests, properly conducted, are reliable irrespective that not all experts wholly agree and that the common law foundational evidence Page 189 has, for admissibility, been replaced by statute and rule; and that the legislative delegation was to the Director of Health, not the court, the discretionary authority for adoption of appropriate tests and procedures, including breath test devices. Not only does appellee s position fail to give recognition to the legislative determination, it also misperceives the presumption and the effect of that presumption created by R.C The presumption created by R.C is that the accused was under the influence of alcohol. The effect of the presumption is to eliminate the necessity of proof by the prosecution of the effect of alcohol on the individual when the level is within the range established by the presumption. The statute does not create an absolute presumption, but only a rebuttable one. * * * [The defendant may still,] notwithstanding the presumption, [establish if he can that] he was not under the influence of alcohol at the time of his arrest, or that there was something wrong with the test and the results were erroneous. Erwin, Defense of Drunk Driving Cases (3 Ed.1971) 26-9, Section This presumption does not, contrary to appellee s arguments, change the presumption of innocence to one of guilt. It merely raises the rebuttable presumption that one was under the influence of alcohol. Under the statute, the accused may introduce any other competent evidence bearing upon the question of whether he was under the influence of intoxicating liquor. Rebuttable evidence may include non-technical evidence of sobriety, such as a videotape or testimony by the accused or by witnesses concerning the accused s sobriety and the amount of consumption, as well as technical evidence, such as additional chemical tests and the completion of field sobriety tests. There is no question that the accused may also attack the reliability of the specific testing procedure and the qualifications of the operator. See, e.g., Cincinnati v. Sand (1975), 43 Ohio St.2d 79, 330 N.E.2d 908 [72 O.O.2d 44]. Defense expert testimony as to testing procedures at trial going to weight rather than admissibility is allowed. Accord State v. Brockway, supra, 2 Ohio App.3d at 232, 441 N.E.2d 602. Since the presumption is rebuttable and the defendant may go forward with evidence, the * * * [d]efendant cannot be heard to complain that the provisions of R.C eliminate his presumption of innocence or hamper the presentation of his defense. State v. Myers, supra, 26 Ohio St.2d at 201, 271 N.E.2d 245. The presumption created by the scientific test is thus to be considered by the jury and the court along with the other [465 N.E.2d 1308] evidence as to whether or not the accused was intoxicated. Whether the presumption was overcome by the evidence presented is a question of fact for the jury. Even with the assistance of the presumption, the state must prove every element of the offense charged, including the element of intoxication beyond a reasonable doubt Before the jury may convict. The prosecution must still lay the proper foundation for admission of the intoxilyzer test results. Proper jury instructions are essential and will ensure that the jury is aware of the rebuttable nature of the presumption created by R.C and that the state must still prove guilt beyond a reasonable doubt. Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.5

12 Page 190 For the above-stated reasons, this court holds that in light of R.C , an accused may not make a general attack upon the reliability and validity of the breath testing instrument, and thereby reverses the holding of the court of appeals. Judgment reversed. FRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN, LOCHER and HOLMES, JJ., concur. SWEENEY, CLIFFORD F. BROWN and JAMES P. CELEBREZZE, JJ., dissent. CLIFFORD F. BROWN, Justice, dissenting. The decision reached by the court today sanctions an unconstitutional exclusion of evidence from a criminal trial. Under the Constitutions of the state of Ohio and the United States all persons accused of crime have the right to present their own evidence including expert testimony. As I do not believe R.C stands for the proposition that no expert testimony may be introduced to rebut the statutory presumption created, I dissent. There is no prohibition against the presentation of expert medical testimony by the accused to show the nonexistence of any nexus between the test results and the physical condition of the accused. See State v. Myers (1971), 26 Ohio St.2d 190, 271 N.E.2d 245 [55 O.O.2d 447]. Even though the Director of Health has approved a specific test, and test machine, pursuant to the legislative authority granted under R.C et seq., the court may independently determine the reliability of the test procedure. The common-law criteria for the admissibility of evidence continue for the very reason that R.C provides, the court may admit evidence on the concentration of alcohol the defendant s blood. * * * Since the legislature has provided the presumption arising from the requisite blood alcohol content test to be rebuttable, no limitation should be placed on a defendant s right to offer evidence to rebut the test result. The rulemaking power of the Director of Health can never deprive a defendant of his constitutional right to present all relevant evidence in his defense to the crime with which he is charged. The admissibility of relevant evidence is a judicial function. The Ohio Constitution has delegated the responsibility for the fashioning of evidentiary rules solely to the Ohio Supreme Court. Section 5(B), Article IV of the Constitution provides in part: (2) The supreme court shall prescribe rules governing practice and procedure in all courts of the state * * *. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. 1.6 Traffic Law Update

13 It has been recently noted by the court in Melling v. Stralka (1984), 12 Ohio St.3d 105, 465 N.E.2d 857, * * * that the foregoing constitutional provisions grant plenary rulemaking authority to the Supreme Court, which authority is necessary for a uniform, effective governance of the practice of law in this state. This court in furtherance of the powers granted it by the Constitution Page 191 has enacted the Ohio Rules of Evidence. Pursuant to these rules the courts within this state must make rulings concerning the admissibility of evidence. In the present case, it is clear that while the legislature has created a presumption of reliability concerning the intoxilyzer tests, Evid.R. 401, 402, 702 and 703 mandate the admission of the testimony proffered by defendant s expert witness at trial. [465 N.E.2d 1309] The cases relied upon by the majority relate only to the use and admissibility of machine test results by the state. None of the cases holds a defendant may not make a general attack upon the machine used. In this case, the appellee wished to introduce testimony relating to the indicia of reliability of intoxilyzer Model 4011, the machine used to test his blood-alcohol content. Serious questions have arisen in the past concerning radio interference and its effects on older intoxilyzer models. It was proffered that Dr. Frajola was going to testify as to radio interference, particularly on Model The heart of appellee s defense was the testimony of Dr. Frajola concerning the reliability of the intoxilyzer results. In State v. Brockway (1981), 2 Ohio App.3d 227, 441 N.E.2d 602, the testimonies of both Dr. Frajola and Leonard J. Porter, of the Ohio Department of Health, were admitted concerning the reliability of intoxilyzer Model The issue of relevancy or admissibility of evidence cannot be usurped by the legislature nor delegated by the legislature to the Director of Health. The constitutional principle of separation of powers among the branches of government demands this conclusion. It is the function of the judiciary to rule on the admissibility of relevant evidence. The exclusion of relevant expert testimony solely because of a legislative or administrative presumption is unconstitutional. I would, therefore, affirm the judgment of the court of appeals. SWEENEY and JAMES P. CELEBREZZE, JJ., concur in the foregoing dissenting opinion Notes: [1] This section has since been revised. [2] It is noted that there has been no assertion that there was an abuse of discretion by the Director of Health in promulgating these rules Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.7

14 1.8 Traffic Law Update

15 Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.9

53 2013-Ohio-562 STATE OF OHIO, Plaintiff-Appellant, v. HEATHER REID, Defendant-Appellee. No. 12CA3 Court of Appeals of Ohio, Fourth District, Pickaway February 7, 2013 CRIMINAL CASE FROM MUNICIPAL COURT COUNSEL FOR APPELLANT: Gary D. Kenworthy COUNSEL FOR APPELLEE: James R. Kingsley COUNSEL FOR AMICUS CURIAE OHIO ASSOCIATION OF CRIMINAL DEFENSE LAWYERS: D. Timothy Huey and Jessica G. Fallon COUNSEL FOR AMICUS CURIAE STATE OF OHIO: Mike Dewine, Ohio Attorney General, and Matthew J. Donahue, Ohio Assistant Attorney General DECISION AND JUDGMENT ENTRY PER CURIAM. { 1} This is an appeal from a Circleville Municipal Court order to exclude Intoxilyzer 8000 test results from evidence in the trial of Heather Reid, defendant below and appellee herein. Authorities had charged Reid with operating a motor vehicle with a prohibited breath-alcohol concentration in violation of R.C (A)(1)(h). Pursuant to R.C , we granted the State of Ohio, plaintiff below and appellant herein, leave to appeal the trial court s evidentiary ruling. { 2} Appellant assigns the following errors for review: FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED BY GRANTING APPELLEE S MOTION TO SUPPRESS THE RESULTS OF HER INTOXILYZER 8000 TEST AND REQUIRING THE STATE OF OHIO TO PROVE BY WAY OF EXPERT TESTIMONY THAT THIS INSTRUMENT WAS ACCURATE AND RELIABLE EVEN THOUGH IT HAD BEEN APPROVED BY THE DIRECTOR OF HEALTH FOR ALCOHOL BREATH TESTING PURPOSES AND THE APPELLEE S TEST WAS IN ALL RESPECTS ADMINISTERED IN SUBSTANTIAL COMPLIANCE WITH THE RULES AND REGULATIONS PRESCRIBED BY THE DIRECTOR Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.47

54 SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT CONDUCTED A DAUBERT [V. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579, 113 S.CT. 2786, 125 L.ED.2D 469 (1993)] ANALYSIS TO DETERMINE THE RELIABILITY OF THE PRINCIPLES AND METHODS UPON WHICH THE INTOXILYZER 8000 BREATH TEST RESULTS ARE BASED, IN VIEW OF THE LEGISLATIVE MANDATE PROVIDING FOR ADMISSION OF BREATH TESTS IF ANALYZED IN ACCORDANCE WITH THE METHODS APPROVED BY THE OHIO DIRECTOR OF HEALTH THIRD ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED IN CONDUCTING A JUDICIAL REVIEW OF A QUASI LEGISLATIVE REGULATION OF THE OHIO DEPARTMENT OF HEALTH WHEN A CHALLENGE TO THE VALIDITY OF SUCH REGULATION MUST BE MADE UNDER THE DECLARATORY JUDGMENT ACT PROVISIONS OF R.C OR AN ADMINISTRATIVE APPEAL UNDER THE R.C [SIC] AND FILED IN THE COMMON PLEAS COURT. { 3} On February 7, 2011, law enforcement authorities charged appellee with (1) operating a motor vehicle with a prohibited breath-alcohol concentration in violation of R.C (A)(1)(h), and (2) failure to dim headlights in violation of R.C Appellee moved to suppress the breath test results and argued that the Intoxilyzer 8000 is not a proven, reliable method to accurately detect breathalcohol concentration. After a hearing, the trial court held that it would permit the state to introduce the test results into evidence if it could demonstrate the instrument s reliability. After a further hearing, and based upon stipulated testimony, the court determined that the state failed to show that the Intoxilzyer 8000 is a reliable breath testing instrument. The court stated: there are too many questions with RFI [radio frequency interference], sample size of the chamber, volume of the sample tested, possible operator manipulation of the results, possible [manufacturer] modifications of the software without the knowledge of ODH and slope detector inadequacy to permit the court to say that the instrument is accurate and reliable. Thus, the trial court excluded the Intoxilyzer 8000 test results and found appellee not guilty.[1] We granted the state leave to appeal the trial court s evidentiary ruling. { 4} Because appellant s three assignments of error assert that the trial court improperly suppressed the Intoxilyzer 8000[2] results and raise related issues, we combine them for ease of review. { 5} In its first assignment of error, appellant asserts that the trial court improperly determined that the Intoxilyzer 8000 results are inadmissible in the absence of expert testimony to demonstrate the machine s reliability. In its second assignment of error, appellant asserts that the trial court wrongly employed 1.48 Traffic Law Update

55 Daubert principles to analyze the admissibility of the Intoxilyzer 8000 results. Both assignments of error assert, in essence, that in view of the fact that the Ohio Director of Health (ODH) has approved the use of the Intoxilyzer 8000, the trial court need not, and may not, conduct any inquiry into the device s reliability. Thus, appellant contends, the ODH s approval of the Intoxilyzer 8000 renders those test results ipso facto admissible. In its third assignment of error, appellant argues that the trial court s review of the ODH s regulation regarding the Intoxilyzer 8000 is improper in the context of a motion to suppress evidence. Appellant contends that any challenge to the regulation must be made pursuant to a request for a declaratory judgment or other administrative action. { 6} Generally, trial courts possess broad discretion to determine whether to admit, or to exclude, evidence. E.g., State v. Morris, 132 Ohio St.3d 337, 2012-Ohio- 2407, 972 N.E.2d 528, 19. Consequently, an appellate court ordinarily reviews a trial court s evidentiary ruling under the abuse-of-discretion standard of review. Id The abuse-of-discretion standard is not appropriate, however, when a trial court s decision is based upon an erroneous interpretation of the law. Id Instead, whether a trial court properly applied the law presents a legal question that an appellate court reviews independently and without deference to the trial court. Id at 16. { 7} In the case sub judice, appellant challenges the trial court s application of the law when it decided to exclude the Intoxilyzer 8000 test results from the evidence. Appellant contends that in doing so, the trial court misinterpreted the applicable law. As we pointed out above, because the proper interpretation of the law is a question of law, we need not defer to the trial court s decision and instead, must independently, and without deference, review the trial court s decision. { 8} R.C (D)(1)(b) governs the admissibility of evidence regarding a defendant s breath-alcohol concentration: In any criminal prosecution * * * for a violation of division (A) or (B) of this section * * * the court may admit evidence on the concentration of alcohol * * * in the defendant s * * * breath * * * at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation. * * * * The bodily substance withdrawn under division (D)(1)(b) of this section shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section of the Revised Code. { 9} R.C grants the ODH the authority to approve techniques or methods to chemically analyze a person s breath to determine alcohol content. Under , the ODH approved the Intoxilyzer model 8000 (OH-5) as an evidential breath testing instrument[] for use in determining whether a [defendant] s breath contains a concentration of alcohol prohibited under R.C Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.49

56 { 10} R.C is a gate-keeping statute, State v. Mayl 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, 20, and prevents a defendant from making a general attack upon the reliability and validity of the breath testing instrument. State v. Vega, 12 Ohio St.3d 185, 190, 465 N.E.2d 1303 (1984). Through the enactment of R.C , the legislature has determined that intoxilyzer tests are proper detective devices and has legislatively resolved the questions of reliability and relevancy of intoxilyzer tests. Id at 188. The legislature has thus determined that breath tests, properly conducted, are reliable irrespective that not all experts wholly agree and that the common law foundational evidence has, for admissibility, been replaced by statute and rule; and that the legislative delegation was to the Director of Health, not the court, the discretionary authority for adoption of appropriate tests and procedures, including breath test devices. Id at , quoting State v. Brockway, 2 Ohio App.3d 227, 232, 441 N.E.2d 602 (1981). Accord State v. Harris, 4th Dist. No. 03CA760, 2003-Ohio-3476, 16. Consequently, the Ohio General Assembly has rendered the ODH s approval of the Intoxilyzer 8000 ostensibly impervious to general reliability and admissibility challenges during a criminal trial. { 11} Since Vega, courts have agreed that a defendant may not challenge the general reliability of an ODH-approved chemical analysis technique or method to detect a defendant s bodily alcohol concentration. E.g., State v. Mongeau, 3rd Dist. No , 2012-Ohio-5230, 19 (defendant may not make a general attack on DataMaster testing procedure); State v. Urso, 195 Ohio App.3d 665, 2011-Ohio- 4702, 961 N.E.2d 689, 91 (11th Dist.) (defendant could not challenge general reliability of DataMaster); State v. Klintworth, 4th Dist. No. 10CA40, 2011-Ohio- 3553, (defendant may not attack general reliability of urine testing procedure); Columbus v. Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, 933 N.E.2d 317 (10th Dist.) (defendant may not make general attack on breath testing device); State v. Fisher, 1st Dist. No. C , 2009-Ohio-2258, 30 (defendant may not attack breath tests in general); State v. Luke, 10th Dist No. 05AP-371, 2006-Ohio-2306; State v. Davis, 4th Dist No. 03CA16, 2004-Ohio-1226; State v. Brown, 4th Dist. No. 01CA13, 2002-Ohio-6129, 39; Lakewood v. Horvath, 8th Dist. No (Nov. 4, 1999) (defendant may not challenge use of breath testing machines in general); State v. Melms, 131 Ohio App.3d 246, 252, 722 N.E.2d 159 (3rd Dist. 1999); State v. Hill, 4th Dist. No. 92CA30 (May 21, 1993); State v. Lyle, 4th Dist. No. 1733, (May 8, 1992). But, see, Parma v. Dempsey, 8th Dist. No , 2011-Ohio-6624, 23 and 29 (Gallagher, J., dissenting) (expressing concern that courts, pursuant to legislative pronouncement, lack authority to determine admissibility of technical evidence when it has not been vetted for reliability ). { 12} We, however, believe that a close reading of Vega arguably leaves room for debate about whether a trial court must admit Intoxilyzer 8000 results into evidence. Vega stated, in broad terms, that a defendant may not make a general challenge to the reliability and validity of an ODH approved breath testing instrument. The court stated that an accused may not make a general attack upon 1.50 Traffic Law Update

57 the reliability and validity of the breath testing instrument. Id. at 190. The court also stated that an accused may attack the reliability of the specific testing procedure, but not in a motion to suppress evidence. Id. at 189. The court explained that the attack upon the reliability of the specific testing procedure involves evidentiary weight, not admissibility, and appears to permit a defendant to challenge to the reliability and validity of a specific testing procedure, and the adherence to rules for the instrument s operation. { 13} Part of the problem in interpreting the true meaning of the Vega language is that it is not clear what the terms general attack and specific testing procedure mean. The general attack language seems to indicate that a defendant cannot generally attack the reliability of approved breath testing instruments, but may specifically attack a particular instrument s reliability. As the cases cited above make apparent, this has not been the universal interpretation of Vega. Instead, courts have interpreted Vega to mean that if the ODH has approved a breath testing device, that device is not subject to a reliability challenge-whether general or specific. Rather, challenges could be made concerning the compliance with specific testing procedures and methods for individual tests, and whether particular test results are reliable. { 14} Another problem that Vega did not address is the permissive language in R.C (D)(1)(b). The statute s language does not absolutely require a court to admit evidence from an instrument that the ODH has approved, but, instead, states that a court may admit such evidence. Thus, the statute apparently affords a trial court discretion to determine whether to admit breath-alcohol tests into evidence. We observe, however, that the Vega dissent raised many of these same arguments and the Vega majority obviously was aware of those arguments, but apparently remained unswayed. While we may share some of the dissent s concerns, we cannot simply overlook the majority s holding and favor the dissent s rationale. { 15} Consequently, in view of the long line of authority from Ohio courts, we believe that in the case subjudice the trial court erroneously excluded the Intoxilyzer 8000 alcohol test results. Based upon the current state of the law, we do not believe that Vega permits a defendant to mount a general reliability challenge to the Intoxilyzer 8000, an instrument that the ODH has approved for use in these circumstances. We recognize that the Ohio Supreme Court may decide to reconsider Vega in light of subsequent changes in the legal landscape, but until it does so, we are bound to follow Vega and may not reach a contrary decision. Although we may agree that many problematic reliability issues surround the design of the Intoxilyzer 8000 and the instrument s approval process[3], we must follow both the legislative directive and the Ohio Supreme Court s pronouncement in Vega. We again emphasize, however, that we welcome further review of this issue so as to end the uncertainty percolating in the lower courts regarding Intoxilyzer 8000 reliability and test result admissibility. A review of the ODH approval process and the instrument s design and performance reveal that many serious issues and concerns have been identified and warrant further inquiry. We recognize that it would be impractical?? to permit a defendant to attack an instrument s design and reliability in every case, but some accommodation should be made when valid reasons exist to question a particular instrument s reliability. Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.51

58 { 16} Accordingly, based upon the foregoing reasons, we sustain appellant s first and second assignments of error. Our resolution of the first two assignments of error renders appellant s third assignment of error moot. See App.R. 12(A)(1)(c). Therefore, we reverse the trial court s decision that the Intoxilyzer 8000 is not a reliable method to determine a person s breath-alcohol concentration and to exclude the alcohol test results. However, because R.C does not allow the state to appeal a final verdict, we may not disturb the trial court s judgment that found appellee not guilty of operating a motor vehicle with a prohibited breath alcohol concentration. JUDGMENT AFFIRMED IN PART AND REVERSED IN PART. McFarland, P.J., dissenting: { 17} I respectfully dissent. This case presents significant issues relating to a defendant s constitutional due process right of confrontation as well as the trial court s role as the gatekeeper for scientific evidence. These rights and the trial judge s gatekeeper role of trial evidence is of great importance to our system of justice and fundamental fairness. I also acknowledge and yield to { 18} the role of the Ohio General Assembly in enacting R.C (D)(1)(b) and the holding of Vega which states that the court may admit and not shall admit the evidence at issue herein.(emphasis added.) { 19} However, the trial judge correctly noted and distinguished that Vega was decided in 1984 when a chemical test included a rebuttable presumption of intoxication unlike today with a per se prosecution. Further, I view the challenge herein to be one attacking a particular instrument and not a general shotgun attack. So, it appears Vega is distinguishable and permits a review under Evid.R. 104 as to the relevancy and reliability of evidence other than via a motion to suppress. And, this is consistent with the important gatekeeper s function of the trial court. { 20} As such, I dissent and like the majority opinion, hope the Supreme Court of Ohio finds reason to review this area of the law to crystalize these important issues. JUDGMENT ENTRY Peter B. Abele, Judge It is ordered that the trial court s judgment be affirmed in part and reversed in part, consistent with this opinion. Appellant shall pay the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Circleville Municipal Court to carry this judgment into execution Traffic Law Update

59 A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure Notes: Abele, J. & Kline, J.: Concur in Judgment & Opinion McFarland, P.J.: Dissents with Dissenting Opinion [1] We recognize that the trial court does not appear to have disposed of the failure to dim headlights charge. We do not believe, however, that this hanging charge renders us without jurisdiction to consider this appeal. Instead, even if the court s judgment is not a final, appealable order, R.C creates an exception to the final, appealable order rule. State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, , 639 N.E.2d 83 (1994) (observing that interlocutory orders are neither final nor appealable but recognizing that [a]n exception to this rule is the state s right to appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case * * * ), quoting R.C ; State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, 13. Accord State v. Jackson, 192 Ohio App.3d 617, 2011-Ohio-986, 949 N.E.2d 1070 (9th Dist.), 7 ( If the General Assembly had intended to limit this court s discretion under R.C (A) to final orders, it could have said so. ). [2] We observe that the state framed its assignment of error as challenging the trial court s decision regarding appellee s motion to suppress evidence. Our decision to grant the state leave to appeal, however, noted that we granted leave to appeal the trial court s evidentiary ruling that excluded the test results at trial. We will not elevate form over substance, but simply point out the difference to explain why we are not setting forth our standard of review from a trial court s decision regarding a motion to suppress evidence. [3] For a summary of some of the problems that the defense bar has raised regarding the Intoxilyzer 8000, see Weiler and Weiler, Ohio Driving Under the Influence Law, Section 8:17 ( Ed.) Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.53

61 2013-Ohio-439 STATE OF OHIO, Plaintiff-Appellant, v. BRANDY M. COLLAZO, Defendant-Appellee. No L-067 Court of Appeals of Ohio, Eleventh District, Lake February 8, 2013 Criminal Appeal from the Painesville Municipal Court, Case No. 12 TRC 607. Joseph M. Gurley, Painesville City Law Director, For Plaintiff-Appellant. Joseph Hada, The Law Offices of Saia & Piatt, Inc., For Defendant-Appellee. OPINION DIANE V. GRENDELL, J. { 1} Plaintiff-appellant, the State of Ohio, appeals the June 1, 2012 Judgment Entry of the Painesville Municipal Court, suppressing the result of a breath test performed on defendant-appellee, Brandy M. Collazo, using an Intoxilyzer The issue before this court is whether a trial court, exercising its evidentiary role as gatekeeper, may entertain a challenge to the results of a breath testing instrument where the Ohio director of health has approved such instrument for determining the concentration of alcohol in a person s breath. For the following reasons, we reverse the decision of the court below. { 2} On February 12, 2012, the Ohio State Highway Patrol issued Collazo a traffic ticket, charging her with OVI, a misdemeanor of the first degree in violation of R.C (A)(1)(a) (driving under the influence of alcohol) and (d) (driving with a prohibited breath alcohol concentration), and with a Safety Belt violation, a minor misdemeanor in violation of R.C (B)(1). { 3} On February 14, 2012, Collazo entered a plea of not guilty. { 4} On March 27, 2012, Collazo filed a Motion to Suppress/Limine, seeking, inter alia, to preclude the State from introducing at trial any testimony or test results on the Intoxilyzer 8000, on the grounds that this evidence is unreliable and bears no relevance to the instant case and the prejudicial effect of its admission would deny her a fair and impartial trial. { 5} On May 15, 2012, a hearing was held on the Motion to Suppress/Limine. Collazo asserted that the Intoxilyzer 8000 had not been shown to be accurate and reliable and submitted that the results should be inadmissible unless the State Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.55

62 produced evidence that convinced the Court that the testing met general standards of accuracy and reliability. The State countered that it did not have to submit evidence of the scientific accuracy and reliability of the machine and, moreover, that if the State shows compliance with the [Ohio Department of Health] rules [the] Court is required to admit the breath test results. { 6} On June 1, 2012, the municipal court issued a Judgment Entry, granting Collazo s Motion. The court concluded that the State has not persuasively shown the reliability of the Intoxilyzer 8000, and ordered that the result of the breath test produced by the Intoxilyzer 8000 is hereby suppresed and cannot be introduced at trial. { 7} On June 7, 2012, the State filed its Notice of Appeal. { 8} On June 15, 2012, the municipal court stayed the matter pending appeal. { 9} On appeal, the State raises the following assignment of error: { 10} [1] The Trial Court erred in finding that the breath tests produced by the Intoxilyzer 8000 [are] inadmissible as evidence at trial. { 11} The State argues that, purusant to the provisions of Revised Code and Ohio Administrative Code (A)(3), a trial court is required to accept the Intoxilyzer 8000 as an appropriate device for chemically analyzing a person s breath to ascertain the amount of alcohol in the breath. { 12} The appropriate standard of review where the lower court s judgment is challenged on a purported misconstruction of the law is de novo. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, 16. In determining a pure question of law, an appellate court may properly substitute its judgment for that of the trial court. (Citation omitted.) Id. { 13} In any criminal prosecution * * * for a violation of division (A) or (B) of [R.C ] * * *, the court may admit evidence on the concentration of alcohol * * * in the defendant s * * * breath * * * at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation. R.C (D)(1)(b). The bodily substance withdrawn under division (D)(1)(b) of this section shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section of the Revised Code. Id. { 14} For purposes of section[] * * * * * * of the Revised Code, the director of health shall determine, or cause to be determined, techniques or methods for chemically analyzing a person s * * * breath * * * in order to ascertain the amount of alcohol * * * in the person s * * * breath * * *. R.C { 15} The Ohio director of health has approved the Intoxilyzer model 8000 (OH-5) as an evidential breath testing instrument[] for use in determining whether a person s breath contains a concentration of alcohol prohibited or defined by section[] * * * of the Revised Code. Ohio Adm.Code (A)(3) Traffic Law Update

63 { 16} Both the municipal court and Collazo rejected the State s argument, contending that the use of permissive language in the OVI statute, i.e., the word may in the phrase the court may admit evidence on the concentration of alcohol, recognizes the trial court s discretion to admit and to exclude evidence. R.C (D)(1)(b). Under this construction, the court below could, but was not required to, admit the breath test results of the Intoxilyzer { 17} Consideration of Ohio Supreme Court decisions construing the relevant statutes compels a different conclusion from the one advanced by the municipal court/collazo. In light of these decisions, the trial court s discretion to admit or exclude evidence is restricted to determining whether the breath test was conducted in accordance with methods approved by the director of health and by an individual possessing a valid permit. The court s discretion under R.C (D)(1)(b) does not permit it to exclude test results based on the scientific accuracy and reliability of the breath testing device, as was done in the present case. { 18} The lead Ohio Supreme Court case on this issue is State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), in which the court addressed the issue of whether the general reliability of intoxilyzers could be challenged in view of the fact that the General Assembly has legislatively provided for the admission of such tests in R.C if analyzed in accordance with methods approved by the Director of Health. Id. at 186.[1] This is substantially the same question at issue in the present case, wherein the municipal court acknowledged the defense made clear through its motions that it was challenging the accuracy and reliability of the Intoxilyzer 8000 breath testing device. { 19} In Vega, the Ohio Supreme Court made it clear that an accused may not make a general attack upon the reliability and validity of the breath testing instrument. Id. at 190. The court explained that, by enacting R.C , the General Assembly ha[s] legislatively resolved the questions of the reliability and relevancy of intoxilyzer tests. Id. at 188. [The judiciary must recognize] the necessary legislative determination that breath tests, properly conducted, are reliable irrespective that not all experts wholly agree and that the common law foundational evidence has, for admissibility, been replaced by statute and rule; and that the legislative delegation was to the Director of Health, not the court, the discretionary authority for adoption of appropriate tests and procedures, including breath test devices. Id.at , citing State v. Brockway, 2Ohio App.3d 227, 232, 441 N.E.2d 602 (4th Dist.1981). { 20} In subsequent decisions, the Ohio Supreme Court reaffirmed its holding in Vega. The court has emphasized that, when regulations are promulgated pursuant to R.C and , it must be presumed that the Director of Health acted upon adequate investigation, and that the courts must defer to the department s authority and * * * not substitute our judgment for that of the Director of Health. State v. Yoder, 66 Ohio St.3d 515, 518, 613 N.E.2d 626 (1993). Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.57

64 { 21} Collazo profers several reductio ad absurdum arguments, claiming that by interpreting Vega to preclude general challenges to the Intoxilyzer s reliability, the director of health could mandate picking test results out of a box at random as an acceptable testing procedure and the results would have to be accepted. This is not the import of Vega s holding, which expressly allowed defendants to demonstrate there was something wrong with the test and the results were erroneous. Id. at 189. { 22} When duly challenged, the State must demonstrate that the bodily substance was analyzed in accordance with methods approved by the director of health and by an individual possessing a valid permit. R.C (D)(1)(b). Vega recognized that [t]here is no question that the accused may * * * attack the reliability of the specific testing procedure and the qualifications of the operator, as well as present expert testimony as to testing procedures at trial going to weight rather than admissibility. Id. at 189. Thus, [t]he defendant may still challenge the accuracy of his specific test results, although he may not challenge the general accuracy of the legislatively determined test procedure as a valid scientific means of determining blood alcohol levels. State v. Tanner, 15 Ohio St.3d 1, 6, 472 N.E.2d 689 (1984); Columbus v. Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, 933 N.E.2d 317, 27 (10th Dist.) ( while [supreme court precedent] permits evidentiary objections to the test results challenging issues such as competency, admissibility, relevancy, authenticity, and credibility, it does not indicate that a challenge to the general reliability is among the permissible challenges ). { 23} Accordingly, Vega does not impose an all or nothing approach to the evidential issues surrounding breath testing, as Collazo suggests. Rather, a trial court still retains its authority and responsibility to regulate the admission of test results. Where the State fails to demonstrate that it followed the procedures set forth by the director of health and/or that the operator was properly qualified, test results may be suppressed. A defendant may also challenge the accuracy of his specific test results at trial and with evidence going to the weight accorded to the test results. { 24} Moreover, to interpret R.C (D)(1)(b) and Vega as urged by Collazo would frustrate the purpose of delegating the authority for approving methods of analyzing alcohol concentration in a person s bodily substance. If the general reliability of a particular instrument or method could be challenged despite its approval by the director of health, then all methods currently employed by law enforcement are vulnerable. Stated otherwise, if the results produced by the Intoxilyzer 8000 may be challenged, with the State bearing the burden of proving reliability through expert testimony, then so could the results obtained from the Intoxilyzer 5000 and the various BAC DataMasters currently approved for use. In like manner, defendants could challenge previously approved techniques and methods such as gas chromatography and enzyme assays. Ohio Adm.Code (A). Equally vulnerable to challenge would be the methods used for determining concentrations of controlled substances. Ohio Adm.Code (B). Finally, law enforcement would be put in the untenable position of speculating what techniques or instruments might be acceptable to the courts, with the only recourse being trial and error and appeal throughout Ohio s more than 88 county and municipal jurisdictions Traffic Law Update

65 { 25} When Collazo s argument has been raised in these other contexts, it has similarly been rejected. See State v. Klintworth, 4th Dist. No. 10CA40, 2011-Ohio- 3553, 12 ( this court will not allow the defendant to us[e] expert testimony to attack the general reliability or general accuracy of a legislatively determined test procedure - urine testing - as a valid scientific means of determining blood alcohol levels ) (citation omitted); State v. Massie, 2nd Dist. No CA 24, 2008-Ohio- 1312, 36 ( Massie s Daubert challenge [to the BAC DataMaster test results] * * * is forestalled by the legislative mandate recognized in Vega, and the trial court properly limited Massie to the issue of his own test ). { 26} Alternatively, it is argued that the delegation of authority to the director of health to approach testing methods and devices violates the separation of powers doctrine and infringes upon the trial court s regulation of the admission of expert testimony under Evidence Rule 702. { 27} The supreme court shall prescribe rules governing practice and procedure in all courts of the state * * * All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. Ohio Constitution, Article IV, Section 5(B). Thus, the Ohio Rules of Evidence, which were promulgated by the Supreme Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must control over subsequently enacted inconsistent statutes purporting to govern evidentiary matters. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 491, 715 N.E.2d 1062 (1999). In order to demonstrate the legislature infringed upon the judiciary s power to enact evidentiary rules appellant must demonstrate the legislation contradicts or is an attempt to supersede an existing evidentiary rule. State v. Boczar, 11th Dist. No A-0063, 2005-Ohio- 6910, 38. When a statute does not conflict with a Rule of Evidence, a statute can control the admissibility of evidence. State v. Cross, 11th Dist. No L-208, 2006-Ohio-1679, 21. { 28} The delegation of authority to the director of health to establish the appropriate methods for determining the amount of alcohol in a defendant s bodily substances does not conflict with any Rule of Evidence. Collazo refers to Evidence Rules 104(A) and 702; but nothing in these Rules establishes the trial court as the sole gatekeeper with respect to the general reliability of instruments measuring the concentration of alcohol in a person s bodily substances. On the contrary, Evidence Rule 102 states that [t]hese rules shall not supersede substantive statutory provisions. The Staff Notes elaborate further by stating, [t]he Rules of Evidence * * * are not an exhaustive compilation of the rules governing evidence questions, nor are the rules preemptive as to subjects that they do not address. { 29} The Ohio Supreme Court, in State v. Mayl, 106 Ohio St.3d 207, Ohio-4629, 833 N.E.2d 1216, expressly characterized R.C (D)(1) as threeparagraph gate-keeping statute. Id. at 20. Where R.C (D)(1) is satisfied, it does no[t] matter under which portion of R.C (A) a person is charged, the state has the opportunity to offer the results of a bodily substance test to show either impairment * * * or to show that the statutory concentrations of alcohol or drugs have been exceeded. Id. at 19. Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.59

66 { 30} It has also been observed that the legislature has created standards for the admissibility of evidence in many instances. State v. Phipps, 3rd Dist. No , 2004-Ohio-4400, 12.[2] { 31} In a similar situation, the Ohio Supreme Court considered the General Assembly s authority to statutorily provide for the admissibility of the results of field sobriety tests based on substantial compliance, rather than the strict compliance standard, based on common law, adopted by Ohio courts. The Supreme Court found no encroachment on the exclusive rule-making authority of the judiciary. State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, 22. While acknowledging that [t]he trial judge is the guardian of the admissibility of evidence, the General Assembly, through its deliberative process, could conclude that failure to strictly comply with test procedures affects the evidentiary value of field sobriety tests but that substantial compliance will not result in the tests exclusion, i.e., that the tests are sufficiently reliable to be admissible by meeting a clear-and-convincing standard. Id. at 23. { 32} Concerns about the reliability of the results in the absence of strict compliance could be addressed by the defense on cross-examination. Id. { 33} Likewise in the present case, R.C and R.C (D)(1) do not preempt the trial court s authority to rule on the admissibility of evidence, but rather delegate the preliminary determination regarding the scientific reliability of testing devices to the director of health. That determination is not conclusive as to the ultimate admissibility of the test results. As noted above, the State must demonstrate that the bodily substance was analyzed in accordance with methods approved by the director of health. R.C (D)(1)(b). The defendant may always challenge the accuracy of his or her specific test results and the qualifications of the person administering the test and otherwise strive to discredit the weight to be given the specific test results. Vega, 12 Ohio St.3d at 189, 465 N.E.2d 1303; Tanner, 15 Ohio St.3d at 6, 472 N.E.2d 689. { 34} In the present case, Collazo introduced no evidence on which the municipal court could have concluded that the test results of the Intoxilyzer 8000 were unreliable. In order to rebut the Vega presumption, Collazo was required to raise specific procedural and substantive challenges. Collazo has failed to so. { 35} The State s sole assignment of error is with merit. { 36} For the foregoing reasons, the judgment of the Painesville Municipal Court, granting Collazo s Motion to Suppress/Limine, is reversed, and this cause is remanded for further proceedings consistent with this opinion. Costs to be taxed against appellee. MARY JANE TRAPP, J., concurs. THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion Traffic Law Update

67 { 37} R.C (D)(1)(b) does not mandate admissibility of breath test results derived from the Intoxilyzer Rather, that statute which, by its plain language controls the issue in this case, vests the trial court with discretion regarding admissibility despite approval from the director. I, therefore, respectfully dissent. { 38} R.C empowers the director to approve breath testing devices, and R.C (D)(1)(b) grants trial courts the discretion to admit the results from approved devices without further proof of reliability when circumstances warrant. Although some claim the contrary, nobody is correct all the time. In recognizing human fallibility, the legislature had the wisdom to vest within the trial court the discretion per R.C (D)(1)(b) to conduct further inquiry when there is an issue as to the reliability of an approved breath testing device before admitting the results. { 39} R.C (D)(1)(b) states that [i]n any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense that is vehicle-related, the court may admit evidence on the concentration of alcohol, drugs of abuse, controlled substances, metabolites of a controlled substance, or a combination of them in the defendant s whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation[, ] and [t]he bodily substance withdrawn under division (D)(1)(b) of this section shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section of the Revised Code. (Emphasis added.) { 40} The statute does not use the word shall, which would mandate admission regardless of the circumstances. Rather, the statute uses the word may. For purposes of statutory construction, use of the word may is generally construed to make the provision in which it is contained optional, permissive, or discretionary * * *. Dorrian v. Scioto Conservancy Dist, 27 Ohio St.2d 102, 107 (1971); State v. Suchevits, 138 Ohio App.3d 99, 102 (11th Dist. 1999). { 41} In this case, the trial court exercised its discretion not to admit the breath test absent proof from the state that the Intoxilyzer 8000 is generally reliable, a decision consistent with the discretion it possesses under R.C (D)(1)(b). As reliability presents a threshold admissibility issue, reliability, as opposed to the weight to be afforded any admitted evidence, is one for the trial court. Knott v Revolution Software Inc. 181 Ohio App.3d 519, 2009-Ohio- 1191, 45 (5th Dist.); State v. Riley, 6th Dist. No. WD , 2007-Ohio-879, 27 (expert testimony must be deemed reliable before it is deemed admissible.); Saad v. Shimano American Corp., 2000 U.S. Dist. LEXIS 10974, *7 (N.D. Ill. 2000)(The Supreme Court has made it clear that the courts must allow into evidence only expert testimony that meets certain threshold standards of reliability and usefulness). Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.61

68 { 42} Moreover, the determination of evidential reliability necessarily implicates the defendant s substantive due process rights. { 43} Substantive due process, [although an] ephemeral concept, protects specific fundamental rights of individual freedom and liberty from deprivation at the hands of arbitrary and capricious government action. The fundamental rights protected by substantive due process arise from the Constitution itself and have been defined as those rights which are implicit in the concept of ordered liberty. (* * *) While this is admittedly a somewhat vague definition, it is generally held that an interest in liberty or property must be impaired before the protections of substantive due process become available. State v. Small, 162 Ohio App.3d. 375, 2005-Ohio-3813, 11 (10th Dist.), quoting Gutzwiller v. Fenik, 860 F.2d. 1317, 1328 (6th Cir. 1989). { 44} However vague the conceptual parameters of one s substantive due process guarantees may be, the following principle is clear; [substantive] * * * due process is violated by the introduction of seemingly conclusive, but actually unreliable evidence. Barefoot v. Estelle, 463 U.S. 880, 931, fn. 10 (1983). { 45} The trial court was aware that other courts had deemed the Intoxilyzer 8000 unreliable even though it was approved. Against the backdrop, the court ordered the state to establish the general reliability of the Intoxilyzer 8000 before admitting the results. Given the constitutional gravity of admitting unreliable results, however, and its statutory authority to act as gatekeeper regarding breath test results, the lower court s decision to require the state to produce evidence of the machines reliability was an eminently reasonable and sound legal decision. [A]n abuse of discretion is the trial court s failure to exercise sound, reasonable, and legal decision-making. State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, 62, quoting Black s Law Dictionary (8 Ed.Rev.2004) 11. { 46} In Vega, the court held * * * an accused is not denied his constitutional right to present a defense nor is the state relieved of its burden of proving guilt beyond a reasonable doubt where a trial judge does not permit expert testimony to attack the reliability of intoxilyzers in general. (Emphasis added.) Id. at 186. { 47} Threshold admissibility was not at issue in Vega. That is, the defendant made no challenge to the trial court s admission of his breath test result. Instead, after the state presented its case and rested, the defendant attempted to present a reliability defense by attacking intoxilyzers in general. See also State v. Vega, 5th Dist. No. CA-1766, 1993 Ohio App LEXIS 14350, *16 (Nov.22, 1983)(Hoffman, J., dissenting). Unlike Vega, 12 Ohio St.3d 185, threshold admissibility is the issue in the case before us. Moreover, unlike Vega, our case is not about the reliability of intoxilyzers in general. Our case is limited to whether the Intoxilyzer 8000 is reliable. In short, the circumstances at issue in Vega were fundamentally distinguishable from those in our case. { 48} Additionally, the rule in Vega does not contemplate a situation where, as here, an approved device s general reliability has been assessed by other courts for both use in and out of this state and the device s reliability has been found 1.62 Traffic Law Update

69 suspect. See State v. Johnson, Portage County Municipal Court, January 6, Vega expressly states that its holding does not involve a situation where there was an assertion that there was an abuse of discretion by the director in approving the breath testing device at issue. Vega at 187, fn. 2. Obviously, in our case if the Intoxilyzer 8000 is unreliable, approval would amount to an abuse of discretion and admission of the test results a violation of substantive due process. { 49} Breath tests are * * * generally recognized as being reasonably reliable on the issue of intoxication when conducted with proper equipment and by competent operators. (Emphasis added.) Vega at 186, quoting Westerville v. Cunningham, 15 Ohio St.2d 121, 128(1968). Thus, the central issue as presented in the case before us, does the Intoxilyzer 8000 qualify as proper equipment? The answer is yes if it is generally reliable and no if it is not. This is a query, however, that, under Ohio law, a trial court is entitled to resolve pursuant to R.C (D)(1)(b). { 50} In this case, the trial court exercised its discretion to safeguard the defendant s right to substantive due process by merely requiring the state to show the Intoxilyzer 8000 is generally reliable. Under the circumstances, this decision was sound and reasonable. This is particularly true in light of the fact that a trial court is vested with broad discretion in the admission or exclusion of evidence and in recognition that it has inherent power to exclude or strike evidence on its own motion. Caroll v Caroll, 7th Dist. No. 89-C-1, 1990 Ohio App. LEXIS 1339, *8 (April 5, 1990); Neil v. Hamilton County, 87 Ohio App.3d 670; Oakbrook Realty Corp. v. Blout, 48 Ohio App.3d 69, 70 (10th Dist. 1988). { 51} When an appellate court [**14] is reviewing a pure issue of law, the mere fact that the reviewing court would decide the issue differently is enough to find error (of course, not all errors are reversible. Some are harmless; others are not preserved for appellate review). By contrast, where the issue on review has been confined to the discretion of the trial court, the mere fact that the reviewing court would have reached a different result is not enough, without more, to find error. Sertz v. Sertz, 11th Dist. No L-063, quoting Beechler, 2010-Ohio-1900 at 67. { 52} This appeal is centered around a discretionary decision made by the trial court. As I find the court s decision not only reasonable, but constitutionally astute, I would affirm the trial court s exclusion of the breath test in light of the state s refusal to present evidence on the issue Notes: [1]In Vega, the defendant sought to challenge the intoxilyzer s reliability through expert testimony presented at trial, whereas, in the present case the defendant seeks to exclude the intoxilyzer s test result by placing the burden on the State to prove reliability. The differing procedural posture of Vega is not material to the relevance of its holding to the present case. Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.63

70 [2]As examples, the Third District Court of Appeals noted: R.C (D) (limiting the admissibility of evidence regarding victim s sexual activity in prosecutions for Rape); R.C (F) (limiting the permissible uses of evidence regarding the use of occupant restraining devices); R.C (A) (providing that laboratory reports constitute prima-facie evidence of the content, identity, and weight of controlled substances); and R.C (providing for blood-grouping tests to determine identity or paternity) Traffic Law Update

71 2013-Ohio-1296 STATE OF OHIO, Plaintiff-Appellant, v. MATTHEW J. YANCHAR, Defendant-Appellee. No P-0097 Court of Appeals of Ohio, Eleventh District, Portage March 29, 2013 Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2012 TRC Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, For Plaintiff-Appellant. Jason P. Yanchar, For Defendant-Appellee. OPINION DIANE V. GRENDELL, J. { 1} Plaintiff-appellant, the State of Ohio, appeals from the judgment of the Portage County Municipal Court, Ravenna Division, granting defendant-appellee, Matthew J. Yanchar s, Motion to Suppress/Motion in Limine. The issue to be decided in this case is whether a trial court, in the performance of its role as gatekeeper, may require the State to demonstrate the general scientific reliability of a breath testing instrument where the Ohio director of health has approved such instrument for determining the concentration of alcohol in a person s breath. For the following reasons, we reverse and remand the decision of the court below. { 2}On March 8, 2012, Yanchar was issued a traffic ticket, charging him with Operating a Vehicle While Under the Influence (OVI), a misdemeanor of the first degree, in violation of R.C (A)(1)(a), and OVI, a misdemeanor of the first degree, in violation of R.C (A)(1)(d). { 3}On May 25, 2012, Yanchar filed a Motion to Suppress/Motion in Limine. In this Motion, he challenged the results of a breath test taken at the time of the citation, arguing that the Intoxilyzer 8000 is not a reliable instrument. He asserted various specific challenges related to the test including, inter alia, that the test was not conducted in accordance with the pertinent administrative code provisions, that the machine was not properly calibrated, and that the machine operator was not properly qualified. Yanchar also raised challenges related to field sobriety testing and statements he made to the police. Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.65

72 { 4}On August 17, 2012, a hearing was held on the Motion to Suppress/Motion in Limine. At the hearing, the State noted that the issue of the intoxilyzer s general reliability was being questioned and that it would present no witnesses as to this issue, as it believed there was no requirement to prove the intoxilyzer s reliability. Yanchar argued that the court should follow the precedent of its prior cases and suppress the breath test result, based on the State s failure to prove the intoxilyzer s general reliability. Yanchar also requested to preserve his right to challenge other issues raised in the Motion to Suppress following appeal. { 5} In an August 17, 2012 Journal Entry, the trial court granted Yanchar s Motion to Suppress/Motion in Limine with respect to the results of the Intoxilyzer The court noted that it had considered the parties arguments regarding the scientific reliability of the Intoxilyzer 8000 and State v. Johnson, Portage County Municipal Court Case No TRC In Johnson, the trial court held that the State was required to present evidence at a hearing for the trial court to determine the general scientific reliability and admissibility of the breath test results of the Intoxilyzer In the present matter, the court ordered that the Defendant s breath test shall not be admitted during the trial in this matter and dismissed the charge under R.C (A)(1)(d). The court also stayed further proceedings in the matter pending the outcome of the appeal. { 6} The State timely appeals and raises the following assignment of error: { 7} The Portage County Municipal Court erred in permitting a general attack on the scientific reliability of the Intoxilyzer 8000 contrary to Ohio statutes and well-established case law. { 8} The appropriate standard of review where the lower court s judgment is challenged on a purported misconstruction of the law is de novo. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, 16. In determining a pure question of law, an appellate court may properly substitute its judgment for that of the trial court. (Citation omitted.) Id. { 9} We must first address Yanchar s argument that the lower court s August 17, 2012 Journal Entry is not a final order. Yanchar argues that the judgment was limited to a ruling regarding the admissibility of the results of the Intoxilyzer 8000 under the Ohio Rules of Evidence and the court could change its ruling at any time. { 10} This argument has been previously rejected by this court on multiple occasions. State v. Miller, 11th Dist. No P-0032, 2012-Ohio-5585, 18, citing Defiance v. Kretz, 60 Ohio St.3d 1, 4, 573 N.E.2d 32 (1991) ( [a] pretrial challenge to a breathalyzer test, if granted, destroys the state s case under [former] R.C (A)(3) [prohibited breath alcohol concentration], and the state is permitted to appeal pursuant to R.C and Crim. R. 12[(K)(2)] ); State v. Pizzino, 11th Dist. Nos P-0079 and 2012-P-0080, 2013-Ohio-545, 13-14; State v. Canino, 11th Dist. No P-0102, 2013-Ohio-551, This court held that a determination that the Defendant s breath test shall not be admitted during the trial was not a tentative or precautionary ruling. Miller at 19. This court further held that [a]ny doubt as to the finality of this ruling is removed by the 1.66 Traffic Law Update

73 court s dismissal of the charge of operating a vehicle with a prohibited breath alcohol concentration, which also occurred in the present matter. Id. Accordingly, the municipal court s August 17, 2012 Journal Entry is a final order. { 11} In its sole assignment of error, the State argues that, pursuant to the provisions of R.C and Ohio Adm.Code (A), a trial court is required to accept the Intoxilyzer 8000 as an appropriate device for chemically analyzing a person s breath to determine the amount of alcohol in the breath. It further argues that pursuant to State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), a defendant may not attack the general reliability of a breath testing instrument and the State is not required to present evidence to support a determination that the test is generally reliable. { 12} Yanchar rejects the State s argument for several reasons, including the contention that the use of the word may in the phrase the court may admit evidence on the concentration of alcohol in the OVI statute recognizes the trial court s discretion to admit and exclude evidence and that a threshold showing of reliability by the State is required. Further, a similar argument was raised in an amicus brief filed by the Ohio Association of Criminal Defense Lawyers (OACDL), in support of Yanchar. { 13} The Ohio General Assembly has charged the Ohio director of health to determine, or cause to be determined, techniques or methods for chemically analyzing a person s * * * breath * * * in order to ascertain the amount of alcohol * * * in the person s * * * breath[.] R.C The Intoxilyzer 8000 has been approved as an evidential breath testing instrument by the director of health. Ohio Adm.Code (A)(3). { 14} This court has recently addressed the exact issue raised by the State regarding the general reliability of the Intoxilyzer 8000 and determined that, pursuant to Vega, a defendant may not make a general attack upon the reliability and validity of the breath testing instrument, although breath test results are subject to challenge on a variety of grounds, including specific attacks on the reliability of the test and attacks on the performance of the test in a specific defendant s case. Miller, 2012-Ohio-5585, at 30-32; Pizzino, 2013-Ohio-545, at 18; Canino, 2013-Ohio-551, at 20. This position has been consistently maintained by a majority of this court in the recent cases on this matter. { 15} As was discussed in the foregoing cases, since the General Assembly has legislatively provided for the admission of [breath] tests in R.C if analyzed in accordance with methods approved by the Director of Health, the question of the reliability and relevancy of breath tests has been resolved. Vega, 12 Ohio St.3d at 186, 465 N.E.2d Therefore, an accused may not make a general attack upon the reliability and validity of the breath testing instrument. Id. at 190. { 16} While no general attack on reliability may be made, when duly challenged, the State must demonstrate that the bodily substance was analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit. R.C (D)(1)(b). The Ohio Supreme Court has Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.67

74 affirmed that [t]here is no question that the accused may * * * attack the reliability of the specific testing procedure and the qualifications of the operator, as well as present expert testimony as to testing procedures at trial going to weight rather than admissibility. Vega at 189; State v. Tanner, 15 Ohio St.3d 1, 6, 472 N.E.2d 689 (1984) ( [t]he defendant may still challenge the accuracy of his specific test results, although he may not challenge the general accuracy of the legislatively determined test procedure ). { 17} In addition to attacks on the specific performance of a particular breath test in an individual defendant s case, a defendant may also make an attack on the reliability of the Intoxilyzer 8000 based on specific reasons, as opposed to general assertions that the State failed to prove its reliability, which is prohibited under Vega. See Vega at 189. { 18} While Yanchar argues that Vega is distinguishable and no longer applies due to changes in the law over the past few decades, this court has fully considered all applicable law and determined that the foregoing holding in Vega has been reaffirmed by the Ohio Supreme Court, has been applied by various appellate courts, and that Vega is applicable to the present matter. See Miller, 2012-Ohio- 5585, at 27; State v. Carter, 11th Dist. No P-0027, 2012-Ohio-5583, { 19} Both Yanchar and the OACDL assert that the delegation of authority to the director of health to determine the validity of testing methods and devices violates the separation of powers doctrine and infringes upon the trial court s role as gatekeeper and its regulation of the admission of expert testimony under Evidence Rule 702. { 20} This argument has been fully considered and rejected by this court. Pizzino, 2013-Ohio-545, at 27 ( [t]he delegation of authority to the director of health to establish the appropriate methods for determining the amount of alcohol in a defendant s bodily substances does not conflict with any Rule of Evidence ); State v. Tagliaferri, 11th Dist. No P-0094, 2013-Ohio-549, 22, citing State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, 22 (noting that, in a similar situation, the Ohio Supreme Court has considered the General Assembly s authority to statutorily provide for the admissibility of the results of field sobriety tests based on substantial compliance, and found there to be no encroachment on the exclusive rulemaking authority of the judiciary ). { 21} Further, in State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, the Ohio Supreme Court expressly characterized R.C (D)(1) as a three-paragraph gate-keeping statute. Id. at 20. Where R.C (D)(1) is satisfied, it does no[t] matter under which portion of R.C (A) a person is charged, the state has the opportunity to offer the results of a bodily substance test to show either impairment * * * or to show that the statutory concentrations of alcohol or drugs have been exceeded. Id. at 19. { 22} Likewise in the present case, R.C and R.C (D)(1) do not preempt the trial court s authority to rule on the ultimate admissibility of evidence, but rather delegate the preliminary determination regarding the general 1.68 Traffic Law Update

75 scientific reliability of testing devices to the director of health. As noted above, the defendant may always challenge the accuracy of his or her specific test results and otherwise strive to discredit the weight to be given the specific test results, as well as make an attack on the reliability of the Intoxilyzer 8000 based on specific reasons. This is consistent with this court s recent holdings. See State v. Rouse, 11th Dist. No P-0030, 2012-Ohio-5584, 21 ( a defendant is entitled to produce evidence to assail the particular results of the subject test, thereby preserving the trial court s role as gatekeeper). { 23} The OACDL argues in its amicus brief that the courts must counterbalance the Ohio director of health s unfettered discretion, and that Vega should be interpreted in light of various changes in the law over the past few decades. However, the issue before this court is not whether the Ohio Supreme Court should reconsider or revisit its decision in Vega, or whether the Legislature should rewrite the law to remove the director of health s authority to determine the reliability of the intoxilyzer. Instead, this court must determine the proper application of the case law and statutes as they presently exist. This court has thoroughly considered Vega in many decisions and determined that it allows the director of health to make a determination as to the general reliability of the breathalyzer test. Further, although the OACDL pointed to State v.dugan, 12th Dist. No. CA , 2013-Ohio-447, specifically the concurring opinion, as support for the proposition that the separation of powers is violated through the director of health s authority, nothing in that opinion changes this court s foregoing analysis or conclusion as to this issue. { 24} We note that, in the present case, Yanchar challenged the breath test results of the Intoxilyzer 8000 on several specific grounds and raised separate suppression challenges. The municipal court granted Yanchar s Motion solely on the grounds stated in Johnson, and noted that it would grant the defense s request to preserve his right to litigate other issues regarding the Intoxilyzer 8000 as well as [other] issues raised in his motion following an appeal on the issue of general reliability. Therefore, on remand, it will be necessary for the court to hold another hearing to address the other issues raised in Yanchar s Motion to Suppress/Motion in Limine. { 25} The sole assignment of error is with merit. { 26} For the foregoing reasons, the judgment of the Portage County Municipal Court, Ravenna Division, granting Yanchar s Motion to Suppress/Motion in Limine and dismissing the charge of violating R.C (A)(1)(d) is reversed, and this cause is remanded for further proceedings consistent with this opinion. Costs to be taxed against appellee. TIMOTHY P., CANNON, PJ, concurs THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion. { 27} R.C (D)(1)(b) does not mandate admissibility of breath test results derived from the Intoxilyzer Rather, that statute which, by its plain language controls the issue in this case, vests the trial court with discretion regarding admissibility despite approval from the director. I, therefore, respectfully dissent. Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.69

76 { 28} R.C empowers the director to approve breath testing devices, and R.C (D)(1)(b) grants trial courts the discretion to admit the results from approved devices without further proof of reliability when circumstances warrant. Although some claim the contrary, nobody is correct all the time. In recognizing human fallibility, the legislature had the wisdom to vest within the trial court the discretion per R.C (D)(1)(b) to conduct further inquiry when there is an issue as to the reliability of an approved breath testing device before admitting the results. { 29} R.C (D)(1)(b) states that [i]n any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense that is vehicle-related, the court may admit evidence on the concentration of alcohol, drugs of abuse, controlled substances, metabolites of a controlled substance, or a combination of them in the defendant s whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation[, ] and [t]he bodily substance withdrawn under division (D)(1)(b) of this section shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section of the Revised Code. (Emphasis added.) { 30} The statute does not use the word shall, which would mandate admission regardless of the circumstances. Rather, the statute uses the word may. For purposes of statutory construction, use of the word may is generally construed to make the provision in which it is contained optional, permissive, or discretionary * * *. Dorrian v. Scioto Conservancy Dist, 27 Ohio St.2d 102, 107 (1971); State v. Suchevits, 138 Ohio App.3d 99, 102 (11th Dist. 1999). { 31} In this case, the trial court exercised its discretion not to admit the breath test absent proof from the state that the Intoxilyzer 8000 is generally reliable, a decision consistent with the discretion it possesses under R.C (D)(1)(b). As reliability presents a threshold admissibility issue, reliability, as opposed to the weight to be afforded any admitted evidence, is one for the trial court. Knott v Revolution Software Inc. 181 Ohio App.3d 519, 2009-Ohio- 1191, 45 (5th Dist.); State v. Riley, 6th Dist. No. WD , 2007-Ohio-879, 27 (expert testimony must be deemed reliable before it is deemed admissible.); Saad v. Shimano American Corp., 2000 U.S. Dist. LEXIS 10974, *7 (N.D. Ill. 2000)(The Supreme Court has made it clear that the courts must allow into evidence only expert testimony that meets certain threshold standards of reliability and usefulness). { 32} Moreover, the determination of evidential reliability necessarily implicates the defendant s substantive due process rights. { 33} Substantive due process, [although an] ephemeral concept, protects specific fundamental rights of individual freedom and liberty from deprivation at the hands of arbitrary and capricious government action. The fundamental rights protected by substantive due process arise from the Constitution itself and have 1.70 Traffic Law Update

77 been defined as those rights which are implicit in the concept of ordered liberty. (* * *) While this is admittedly a somewhat vague definition, it is generally held that an interest in liberty or property must be impaired before the protections of substantive due process become available. State v. Small, 162 Ohio App.3d. 375, 2005-Ohio-3813, 11 (10th Dist.), quoting Gutzwiller v. Fenik, 860 F.2d. 1317, 1328 (6th Cir. 1989). { 34} However vague the conceptual parameters of one s substantive due process guarantees may be, the following principle is clear; [substantive] * * * due process is violated by the introduction of seemingly conclusive, but actually unreliable evidence. Barefoot v. Estelle, 463 U.S. 880, 931, fn. 10 (1983). { 35} The trial court was aware that other courts had deemed the Intoxilyzer 8000 unreliable even though it was approved. Against this backdrop, the court ordered the state to establish the general reliability of the Intoxilyzer 8000 before admitting the results. Given the constitutional gravity of admitting unreliable results, however, and its statutory authority to act as gatekeeper regarding breath test results, the lower court s decision to require the state to produce evidence of the machines reliability was an eminently reasonable and sound legal decision. [A]n abuse of discretion is the trial court s failure to exercise sound, reasonable, and legal decision-making. State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, 62, quoting Black s Law Dictionary (8 Ed.Rev.2004) 11. { 36} Rather than present evidence of the general reliability of the Intoxilyzer 8000, the state took the position that the trial court could not require it to do so pursuant to Vega and its progeny. Vega, 12 Ohio St.3d 185 (1984). I do not read Vega as holding that under no circumstances can a trial court exercise its discretion to require evidence of general reliability of an approved breath testing device as a condition to admissibility. { 37} In Vega, the court held * * * an accused is not denied his constitutional right to present a defense nor is the state relieved of its burden of proving guilt beyond a reasonable doubt where a trial judge does not permit expert testimony to attack the reliability of intoxilyzers in general. (Emphasis added.) Id. at 186. { 38} Threshold admissibility was not at issue in Vega. That is, the defendant made no challenge to the trial court s admission of his breath test result. Instead, after the state presented its case and rested, the defendant attempted to present a reliability defense by attacking intoxilyzers in general. See also State v. Vega, 5th Dist. No. CA-1766, 1993 Ohio App LEXIS 14350, *16 (Nov.22, 1983)(Hoffman, J., dissenting). Unlike Vega, 12 Ohio St.3d 185, threshold admissibility is the issue in the case before us. Moreover, unlike Vega, our case is not about the reliability of intoxilyzers in general. Our case is limited to whether the Intoxilyzer 8000 is reliable. In short, the circumstances at issue in Vega were fundamentally distinguishable from those in our case. { 39} Additionally, the rule in Vega does not contemplate a situation where, as here, an approved device s general reliability has been assessed by other courts for both use in and out of this state and the device s reliability has been found Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.71

78 suspect. See State v. Johnson, Portage County Municipal Court, January 6, Vega expressly states that its holding does not involve a situation where the defense asserts that there was an abuse of discretion by the director in approving the breath testing device at issue. Vega at 187, fn. 2. Obviously, in our case, if the Intoxilyzer 8000 is unreliable, approval would amount to an abuse of discretion and admission of the test results a violation of substantive due process. { 40} Breath tests are * * * generally recognized as being reasonably reliable on the issue of intoxication when conducted with proper equipment and by competent operators. (Emphasis added.) Vega at 186, quoting Westerville v. Cunningham, 15 Ohio St.2d 121, 128(1968). Thus, the central issue as presented in the case before us, does the Intoxilyzer 8000 qualify as proper equipment? The answer is yes if it is generally reliable and no if it is not. This is a query, however, that, under Ohio law, a trial court is entitled to resolve pursuant to R.C (D)(1)(b). { 41} In this case, the trial court exercised its discretion to safeguard the defendant s right to substantive due process by merely requiring the state to show the Intoxilyzer 8000 is generally reliable. Under the circumstances, this decision was sound and reasonable. This is particularly true in light of the fact that a trial court is vested with broad discretion in the admission or exclusion of evidence and in recognition that it has inherent power to exclude or strike evidence on its own motion. Caroll v Caroll, 7th Dist. No. 89-C-1, 1990 Ohio App. LEXIS 1339, *8 (April 5, 1990); Neil v. Hamilton County, 87 Ohio App.3d 670; Oakbrook Realty Corp. v. Blout, 48 Ohio App.3d 69, 70 (10th Dist. 1988). { 42} Given the foregoing point, there is no reason to remand this case to the trial court based upon perceived inadequacies in the motion to suppress. The trial court made it abundantly clear that it would not admit the test results absent proof of reliability of the Intoxilyzer Requiring the proponent to establish the reliability of scientific evidence is something that a trial court may require as previously discussed. The state was well aware of what the trial court required when it ordered the state to produce evidence of the Intoxilyzer 8000 s reliability, independent and irrespective of the contents of the motion to suppress. Accordingly, there is no procedural due process violation of the state s right to notice and an opportunity to be heard. The trial court s order was unambiguous and an exercise of the sound discretion as the gatekeeper of breath test result admissibility. { 43} When an appellate court [**14] is reviewing a pure issue of law, the mere fact that the reviewing court would decide the issue differently is enough to find error (of course, not all errors are reversible. Some are harmless; others are not preserved for appellate review). By contrast, where the issue on review has been confined to the discretion of the trial court, the mere fact that the reviewing court would have reached a different result is not enough, without more, to find error. Sertz v. Sertz, 11th Dist. No L-063, quoting Beechler, 2010-Ohio-1900 at 67. { 44} This appeal is centered around a discretionary decision made by the trial court. As I find the court s decision not only reasonable, but constitutionally astute, I would affirm the trial court s exclusion of the breath test in light of the state s refusal to present evidence on the issue Traffic Law Update

79 " Intoxilyzer 8000: Is It Alive and Well in Ohio? 1.73

105 Important Changes in Commercial Driver s License Legislation 2 Cleve M. Johnson Attorney at Law Columbus, Ohio LEGISLATION AND EFFECTIVE DATE HB337 effective 1/27/12. NET EFFECT OF THE NEW LAW. To avoid a disqualification, there needs to be no ALS and no OVI conviction. WHAT HAPPENS IN COURT CONTROLS WHAT WILL HAPPEN AT THE BMV. If the OVI case isn t handled in precisely the right way in court, it will be very difficult if not impossible to pull a rabbit out of the hat in a BMV hearing and save the client s job. The client is probably out of luck if he comes out of court with either an ALS or an OVI conviction. The ALS should probably be terminated retroactively as well. THE NEW LAW IN A NUTSHELL 1. Formerly a conviction was required for a disqualification. 2. New law appears to tie CDL disqualifications to the ALS rather than to an OVI conviction. The statue ostensibly provides that one can be convicted of OVI and not be disqualified. Important Changes in Commercial Driver s License 2.1

106 3. This is not the BMV position. BMV interpretation is that EITHER OVI CONVICTION or ALS WILL TRIGGER A DISQUALIFICATION. Note also that even if the BMV is wrong and its decision is overturned, no limited driving privileges can be granted to operate a commercial vehicle under the court suspension on the OVI, even if there is no disqualification. INTERPRETING THE NEW LEGISLATION No disagreement that an ALS triggers a disqualification under the new legislation. There is disagreement as to whether an OVI conviction triggers disqualification. See How does the BMV interpret the new law? infra. The key wording of the new legislation is found in two sections. o First (D)(1) provides that a disqualification is triggered: Upon a first conviction for a violation of any provision of divisions (A)(2) to (12) of section o Second (A)(6) provides that a CDL holder cannot Drive a motor vehicle in violation of section of the Revised Code [or a muni ordinance] o The full text of these subsections is reproduced below. The text of the statute clearly requires both a violation and a conviction of before a disqualification is triggered. A violation without a conviction is insufficient. o Suppose you have a client who drives home drunk but is never arrested. The client may have violated but he was not convicted of violating o For a person to be convicted of violating there has to be a final appealable order somewhere finding the person guilty of a violation of section, , not some other section. o An order convicting of violating does not convict him of violating o Similarly, if there is no court order finding your CDL client guilty of violating , isn t it obvious that your client has not been convicted of violating Traffic Law Update

107 is a straight M1. Suppose you have a client who is convicted under (A)(1)(h). Can the court say well a (A)(1)(h) conviction is the same thing as a conviction, so instead of sentencing the defendant to mandatory jail. I am just going to sentence him to a straight M1 and give him a small fine instead of jail? If this happened, wouldn t the government instead maintain that a (A)(1)(h) conviction is not interchangeable with a conviction? Now the legislature could have specified a conviction under or under but it did not. I instead it required a conviction under Perhaps it did this because it wanted to pair the CDL warnings required under to the consequences of disqualification. The BMV should not unilaterally amend the legislation. Parenthetically I would also note that the ambiguity resolved against the state theory (see ) may very well apply here. It might be thought that we are talking about civil licensing law. On the other hand though, it can also be argued that a criminal statute, , is being construed and the rules concerning criminal statutes should be followed. Furthermore, where Gustufson says that a license sanction after conviction is a criminal penalty for purposes of double jeopardy, there is even more reason to think that strict construction in favor of the defendant applies. It should also be noted that the same argument applies to all the other (A)(2) to (12) violations such as hit skip, i.e. that charging under the hit skip statute isn t sufficient, they need a conviction. THE FULL WORDING of the pertinent subsections of HB 337 appears below. The markings indicating the legislative amendments are also included. Strikethrough text indicates repealed language and underline indicates new language. Sec (D) The registrar of motor vehicles shall disqualify any holder of a commercial driver's license, or any operator of a commercial motor vehicle for which a commercial driver's license is required, from operating a commercial motor vehicle as follows: (1) Upon a first conviction for a violation of any provision of divisions (A)(2) to (9)(12) of section of the Revised Code, or of section or sections to of the Revised Code, or a similar law of another state or a foreign jurisdiction, or upon a first suspension imposed under section of the Revised Code or a similar law of another state or foreign jurisdiction, one year; Important Changes in Commercial Driver s License 2.3

108 (2) Upon a second conviction for a violation of any provision of divisions (A)(2) to (9)(12) of section of the Revised Code, or of section or sections to of the Revised Code, or a similar law of another state or a foreign jurisdiction, or upon a second suspension imposed under section of the Revised Code or a similar law of another state or foreign jurisdiction, or any combination of such violations arising from two or more separate incidents, the person shall be disqualified for life or for any other period of time as determined by the United States secretary of transportation and designated by the director of public safety by rule; Sec (A) No person who holds a commercial driver's license or operates a motor vehicle for which a commercial driver's license is required shall do any of the following: (2) Drive a commercial motor vehicle while having an alcohol concentration of forty-eight-thousandths of one per cent or more by blood serum or blood plasma; (6) Drive a motor vehicle in violation of section of the Revised Code or a municipal OVI ordinance as defined in section of the Revised Code; (8) Refuse to submit to a test under section or of the Revised Code; HOW DOES THE BMV INTERPRET THE NEW LAW? From a practical standpoint, these cases have to be analyzed on two levels. One level is what does the law say? The other is what does the bureau do? The latter can often be more important than the law---and harder to find out. THE BUREAU S POSITION IS THAT AN OVI CONVICTION WILL CAUSE A DISQUALIFICATION In the relatively short time since the law was enacted, I have found that getting the ALS terminated retroactively and preventing a court suspension works and the BMV accepts it. Getting an OVI conviction is more risky. There appears to be an internal disagreement in the bureau itself on this issue. In a recent case involving that issue, the hearing examiner found that a conviction is not a conviction and recommended that the disqualification be terminated. The registrar refused to adopt the hearing officer s report and allowed the disqualification. See Brian K. Anderson vs. BMV, BMV case no DL (9/2/12) [reproduced in Appendix to these materials]. 2.4 Traffic Law Update

109 o The registrar s decision commits the logical error of equivocation. It glosses over two different meanings of the term conviction. It says that an OVI conviction under is a conviction within the meaning of (F). This is true. The problem is that (D)(1) doesn t just require a conviction. It requires a conviction under , not one under The problem with the registrar s rationale is that a conviction under is not a conviction under Since a conviction under is a condition precedent to disqualification and since there was no such conviction, the disqualification should have been improper. The court also noted that under State ex rel. Clark v. Great Lakes Constr. Co., 2003-Ohio-3802, 99 Ohio St. 3d 320, 321, 791 N.E.2d 974, 975 It is a fundamental tenet of administrative law that an agency's interpretation of a statute that it has the duty to enforce will not be overturned unless the interpretation is unreasonable. See the note below showing that the BMV s interpretation is not just unreasonable it is unconstitutional. It should also be noted that along the way, the AG s office submitted a brief saying if you interpret the statute the way the hearing officer did you will lose a lot of federal highway money. The problem here may be analogous to the old Upton Sinclair quote: It is difficult to get a man to understand something when his salary depends on his not understanding it. The Anderson decision itself may be appealed, so the final word on this issue is perhaps yet to be heard. THE BMV S POSITION VIOLATES THE DOUBLE JEOPARDY CLAUSE. In Anderson, the BMV equates a violation with a violation and then imposes an additional punishment beyond that in the OVI case. The BMV s position is that an OVI conviction establishes a violation of (A)(6). Note, however, that (A)(6) defines a criminal offense. Invoking criminal statutes takes the issue out of the civil realm. It creates a double jeopardy problem. Here is the standard in such cases: For over half a century we have determined whether a defendant has been punished twice for the same offense by applying the rule set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). If the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Ibid. In subsequent applications of the test, we have often concluded that two different statutes define the same offense, typically because one is a lesser included offense of the other. 6 Rutledge v. United States, 517 U.S. 292, 297, 116 S. Ct. 1241, 1245, 134 L. Ed. 2d 419 (1996, boldface added). Important Changes in Commercial Driver s License 2.5

110 Because (A)(6) incorporates in its entirety, cannot have different elements than (A)(6). By definition it is impossible for to require different proof. Even if we assume arguendo that the administrative action against the licensee in the disqualification action is civil, that still does not save it from a double jeopardy violation once the defendant has been sentenced on the OVI. We conclude that an automatic and immediate administrative license suspension crosses the line, transforming an initially remedial license suspension into a punishment for double jeopardy purposes, at the point of criminal sentencing after a DUI conviction for violation of R.C At that point, continued recognition or enforcement of the ALS would result in cumulative punishment being imposed upon the criminal offender, which is precluded by the Double Jeopardy Clauses of the United States and the Ohio Constitutions. State v. Gustafson, 1996-Ohio-299, 76 Ohio St. 3d 425, 442, 668 N.E.2d 435, 448 (boldface added). In short, the BMV is imposing yet another license suspension after the point at which the Ohio Supreme Court says it is barred by the double jeopardy clause. In short the registrar s opinion in Anderson violates the double jeopardy clause. There might be a problem with a double jeopardy argument in some circumstances. As is noted below, (G) makes the disqualification concurrent with the court suspension. If the court suspension is equal to or longer than the disqualification, then (G) would provide a Gustafson like solution to the double jeopardy problem. o As a practical matter, this is unlikely. On a first disqualification it would require a year court suspension. Since the disqualification is for life on a second, one would have to be at a felony level to receive a lifetime court suspension. Theoretically this could happen if had a prior felony OVI before 2005, but his would be rare. HOW AN OVI VIOLATION CAN LEGITIMATELY CAUSE A DISQUALIFICATION Even without the BMV s interpretation, a defendant who violates but is instead charged and convicted under (A)(6), should receive a CDL disqualification. There are a few practical problems with this. First, the police never charge under this section, so it would take a massive reeducation effort to achieve this. 2.6 Traffic Law Update

111 Second, (A)(6) requires only straight M1 penalties. A defendant could receive only a small fine, no probation and no jail and it would be entirely legal. Charging under this section might be perceived as not being tough on OVI. Third (A)(6) is not an equivalent offense under As such, it does not count as an OVI conviction, so it would not count as a prior if the defendant was subsequently charged with OVI. Fourth, there is probably no muni code analog to under most municipal codes. Thus, a sort of muni code exception would still exist in that sense as well. THE CONSTITUTIONAL PROBLEM WITH TYING DISQUALIFICATION TO ALS There are a number of due process protections available before a conviction results. There are no due process protections available before an ALS results. Under the strict wording of the statute the officer s unilateral act of serving the 2255 triggers a disqualification. Any ALS suspension, however brief, triggers a mandatory disqualification even if the ALS is later terminated at a hearing. o So far, the BMV does not seem to be interpreting the law this way, but the statute allows it. Such an interpretation would eliminate the post suspension due process hearing component of the ALS. You could get the hearing but it would not affect the validity of the disqualification. The right to a hearing would be illusory since it could not change the result. Procedural due process is required to deprive a person of a driver s license. See Bell vs. Burson, 402 U.S. 535 (1971) and Mackey vs. Montrym, 443 U.S. 1 (1979). Montrym indicates that at a minimum, a prompt post deprivation hearing is required before the administrative action becomes final. It is true that there are hearing provisions in the ALS and the disqualification statute. Presumably if the ALS is struck down in either one of these hearings, a disqualification should not be allowed. Important Changes in Commercial Driver s License 2.7

112 HOW TO SAVE YOUR CLIENT S CDL (Note: this is not the same thing as saving his job) The ALS must be terminated. If it is not, a disqualification is supposed to follow. To avoid the potential problem in the preceding section, it is strongly suggested that language be included in the BMV 2261 or the court order to terminate the ALS retroactively or ab initio from the date of it s imposition. If the suspension is stayed, stay it retroactively. See State vs. Nichols, 2001 WL , 2001-Ohio-1756 (5th Dist., 2001) for authority that the retroactive termination of an ALS suspensions is possible: "...the trial court should retroactively terminate appellant's ALS back to October 13, 2000, the date on which it was improperly imposed..." Note, however, that preventing a disqualification does not necessarily prevent a suspension. Just getting the ALS terminated retroactively may not be enough. o In a test case, the ALS terminates as a matter of law if the defendant is found not guilty [see (D)]. Arguably this should be related back to the offense date. Legally the defendant was not guilty ab initio. If the defendant is not guilty, imposing an ALS on an innocent person was a mistake and it was a mistake from the beginning. o In a refusal case, the ALS terminates upon a plea of guilty to OVI. Retroactive termination is probably improper here. A disqualification should follow. Note also that if the bureau s interpretation is correct and an OVI conviction triggers a disqualification, retroactivity is unimportant. Note also that D cannot drive a commercial vehicle during the court suspension resulting from the conviction under HOW TO SAVE YOUR CLIENT S CDL AND HIS JOB As mentioned, courts are not allowed to grant limited driving privileges to operate commercial vehicles under o Our client s employer may not care too much that he is not disqualified if he still can t drive. o The net effect of this is we HAVE TO TERMINATE THE ALS RETROACTIVELY and make sure that NO LICENSE SUSPENSION OF ANY KIND OCCURS. Even a reckless is a problem if there is a license suspension. 2.8 Traffic Law Update

113 o Note also that there may be a single subject problem with ; although, the courts haven t cared much about this issue lately was contained in 2005 H 66, eff which was a 6,456 page bill that ostensibly was not directed towards traffic law. While the bill generally deals with spending state funds, driving privileges do not. Nor are these things related to matters such as the annual review of the Barber s Board rules or Funeral Director Apprenticeships which are also covered by the bill. The theoretical problem is that because the prohibition was slipped into a bill that dealt with many different subjects, the provision is probably not valid because it violates the single subject rule. See In re Nowak, 104 Ohio St.3d 466, 820 N.E.2d 335, 2004-Ohio-6777 (Ohio Dec 17, 2004). Unfortunately, Solon v. Martin, 2008 WL , Ohio-808 (Ohio App. 8 Dist. Feb 28, 2008) says the statute is constitutional and did not violate the single subject rule by being in the budget bill WERE THE PROPER ALS WARNINGS GIVEN? If the BMV is going to equate a charge brought under to one under , then the ALS warnings required for should be a condition precedent to a disqualification. If the bureau wishes to treat the defendant as if he is a defendant, then it is only fair that he get the 2255 ALS warnings applicable to as well. ARE NEW 2255 S REQUIRED? If the CDL warnings are required for personal vehicle stops, then there is a problem with using the current warnings because the current warnings only cover drivers in commercial vehicles. Thus the 2255 currently in use is probably defective. o It is not clear in the CDL section of the current 2255 that one does not have to be driving a commercial vehicle to receive a disqualification. The current form indicates that one must be driving a commercial vehicle. Arguably this does not comply with (D) and (C). This problem, however, is not new. The same issue existed before HB337. The difference now is that the ALS triggers a disqualification under the new law whereas previously it did not. Presumably giving the right information at the time of the ALS is more significant now than it was under prior. Important Changes in Commercial Driver s License 2.9

114 Unlike regular OVI cases, the 2255 wording for CDL s is not statutory it is a matter of rule (D) provides in part that: The form and contents of the report [2255] required by this section shall be established by the registrar by rule, but shall contain the advice to be read to the driver and a statement to be signed by the driver acknowledging that the driver has been read the advice and that the form was shown to the driver. Id (ellipsis and emphasis added). o Note that the statute does not require that the rule or wording be accurate, complete, correct, or current. o There is an applicable rule, OAC 4501: This rule became effective and basically sets forth what is on the current form. They don t mention anything about an ALS triggering a disqualification, or that a disqualification can result in a personal vehicle WHAT IF THE CDL SECTION OF THE 2255 IS NOT COMPLETED? The traditional answer is that failure to do this prevents a pre-trial disqualification but not one after conviction. Traditionally this only happens in the highly unusual case where a client gets an OVI in a commercial vehicle. Since the officers haven t been filling this section out, the issue hasn t come up. In the limited time that has passed so far, it appears that the traditional policy is still in effect. Pre-trial disqualifications don t happen in non-commercial vehicles and the issue won t come up in that context. If the ALS is now the basis of the disqualification, the proper warnings should be given before the ALS is imposed. If the BMV is going to equate a conviction to one under , then the necessary 2255 warnings for should both drafted and given. If the proper warnings are not given the ALS and any resulting disqualification based upon it should be defective for failure to follow the statutory procedure. NO DISQUALIFICATION IN BLOOD AND URINE CASES Keep in mind, also, that the ALS must be done within 14 days under (E) which requires that the form be served at the time of the arrest or that the bureau must do it within 14 days of the arrest. In the case of blood or urine tests, there should never be an ALS and thus no disqualification. I have never seen the lab move that fast, but even if they did, it is highly unlikely that the bureau would Traffic Law Update

115 What this means is that in blood and urine cases under , one could very well get convicted of OVI without an ALS and thus there should be no disqualification (unless the client refuses the breath test or they get both a breath as well as a blood and urine). Again, this is not the bureau s position. They say a conviction causes a disqualification. If the OVI was charged under (which incorporates / muni code violations) it could still be done. TWO-, NOT THREE-, HOUR WINDOW ON CDL TESTS The legislature missed a section when it revised the law that changed the former two hour window to three hours. Under (B) a test is still required to be given within two hours for CDL holders rather than three hours. This statute applies to CDL license holders even if they are in noncommercial vehicles. While there may be some ambiguity as to whether this just applies to violations in commercial vehicles, the BMV s equation of convictions with those under may push the balance toward the two hour limit. o (A) applies to Any person who holds a commercial driver's license or operates a commercial motor vehicle o (B) incorporates subsection (A): A test or tests as provided in division (A) of this section may be administered at the direction of a peace officer (B) further goes on to provide that: Any such test shall be given within two hours of the time of the alleged violation o Thus a disqualification based on an ALS may be improper if the test was over the two hour limit. LOOK-BACK PERIOD (F) For purposes of this section, conviction of disqualifying offenses committed in a noncommercial motor vehicle are included if either of the following applies: (1) The offense occurred after the person obtained the person's commercial driver's license. (2) The offense occurs on or after September 30, This section does not speak to prior ALS s before 1/28/12. Presumably the BMV will not go back and count them. Important Changes in Commercial Driver s License 2.11

116 REVERSALS OF LIFETIME DISQUALIFICATIONS ARE POSSIBLE Under OAC 4501: must go 10 years and successfully complete, an appropriate rehabilitation program. Does not work for disqualifications resulting from felonies involving manufacturing, distribution, or dispensing of controlled substances. CREDIT FOR COURT SUSPENSION Sec (G) Suspension of a commercial driver's license under division (B) or (C) of this section shall be concurrent with any period of disqualification under section [was child support but is now repealed] or of the Revised Code or any period of suspension under section [child support] of the Revised Code. No person who is disqualified for life from holding a commercial driver's license under section of the Revised Code shall be issued a driver's license under Chapter of the Revised Code during the period for which the commercial driver's license was suspended under division (B) or (C) of this section. No person whose commercial driver's license is suspended under division (B) or (C) of this section shall be issued a driver's license under Chapter of the Revised Code during the period of the suspension. REFUSING THE TEST IS A CRIME FOR CDL HOLDERS Under (A)(8) refusing the test is a M1 for a CDL holder even on a first offense and even in a private vehicle. Before telling that person calling in the middle of the night to refuse it would be a good idea to check if he has a CDL. Otherwise we may be advising the person to commit a crime. Not only that but a itself could at least theoretically trigger a disqualification independently of whether there is an ALS or an OVI conviction. APPEAL TIME CDL Appeal is 30 days from mailing date of BMV notice. See (L). STAY OF DISQUALIFICATION AND PROCEDURE If the notice of appeal is received within 30 days, OAC 4501: provides for an automatic stay. This same section sets forth the procedure on appeal. THE SPECIAL CASE OF CDL SCHOOL BUS DRIVERS Under (F)(2) The owner of a school bus or motor van shall not permit a person to operate the school bus or motor van for six years after the date on which the person pleads guilty to or is convicted of a violation of section of the Revised Code or a substantially equivalent municipal ordinance Traffic Law Update

117 It gets harsher (F)(3) also requires that school bus owners comply with the rules of the state board of education: OAC (F)(2) eff. 7/1/12 [which is incorporated by (F)(3)]: (2) Completion of semi-annual driver record checks through the Ohio department of education for which records shall be maintained by the employer and/or school district for a minimum of six years. Drivers with any of the following shall be disqualified from operating a vehicle: (a) More than six points during the past two years; (b) A conviction of driving while under the influence of alcohol and/or a controlled substance during the past six years; (c) Two (or more) serious traffic violations, as defined in divisions (D)(D)(1) to (D)(D)(7) of section of the Revised Code, during the past two years; or (d) Any railroad crossing violation during the past year as evidenced by a conviction, video, or a report by a railroad official. (e) For qualified drivers actively employed prior to August 1, 2007, convictions for offenses described in paragraph (F)(2)(b) of this rule prior to August 1, 2005, shall not be considered, and convictions for offenses described in paragraph (F)(2)(c) or (F)(2)(d) of this rule prior to August 1, 2007, shall not be considered. (f) (e) Nothing in paragraph (B) of this rule shall limit any district or employer from adopting more stringent qualification Under OAC [Effective 7/1/2012] certain offenses require termination including: OAC (A)(6)(g) Major motor vehicle offenses, which means a violation of sections (operating a motor vehicle under the influence), (RECKLESS operation), (driving under suspension), (driving under OVI suspension), or (physical control while under the influence) of the Revised Code; that occurred either within six years prior to the date of the current application for a position as student transportation driver, or for a current employee, within six years prior to the date of the current records check. OAC (B) No provider of school transportation services shall employ an applicant upon learning that he/she has pled guilty to, been found guilty by a jury or court of, or convicted of any violation of a nonrehabilitative offense as listed in paragraph (A)(6) of this rule. In addition, the district shall release an employee from employment upon learning that Important Changes in Commercial Driver s License 2.13

118 he/she has pled guilty to, been found guilty by a jury or court of, or convicted of any violation of a non-rehabilitative offense as listed in paragraph (A)(6) of this rule Traffic Law Update

119 Appendix Important Changes in Commercial Driver s License 2.15

121 Important Changes in Commercial Driver s License 2.17

123 Important Changes in Commercial Driver s License 2.19

125 *************************************************************** POTENTIALLY RELEVANT ISSUES FROM PRIOR CDL OUTLINES *************************************************************** Legislature gives Ohio BMV given power to ignore court orders. Sec (A) No court may reverse, suspend, or delay any order made by the registrar of motor vehicles, or enjoin, restrain, or interfere with the registrar or a deputy registrar in the performance of official duties, except as provided in this chapter and Chapter or of the Revised Code. (B) A court shall not order the bureau of motor vehicles to delete a record of conviction unless the court finds that deletion of the record of conviction is necessary to correct an error. The bureau shall not comply with a court order that directs the deletion of a record of conviction unless the order states that the record of conviction is being deleted in order to correct an error. Under this section, if court finds that conviction was not an error but was nevertheless unconstitutionally obtained, does the BMV have the power superior to that of the court. Does Federal Law Apply? If federal law requires an OVI conviction to cause a disqualification, it could be argued that it does under Ohio law as well: Sec Notwithstanding any provision of the Revised Code, the bureau of motor vehicles shall not issue or renew a commercial driver s license if issuance or renewal of the license would violate federal law. CDL hold must inform on self Notice of foreign convictions (A) Any driver who holds a commercial driver's license issued by this state and is convicted in another state or a foreign jurisdiction of violating any law or ordinance relating to motor vehicle traffic control, other than a parking violation, shall provide written notice of that conviction within thirty days after the date of conviction to the bureau of motor vehicles and to the driver's employer in accordance with the provisions of 49 C.F.R. 383, subpart C, as amended. (B) Whoever violates this section is guilty of a misdemeanor of the first degree. Important Changes in Commercial Driver s License 2.21

127 OUTLINE OF CDL CHANGES IN HB 68 (2005 H 66, eff ) GENERAL CONSIDERATIONS Scope not a full outline. This outline only covers problems CDL holder can have for violations in non-commercial vehicles. This is not an outline of all CDL violations. Also not covered are things such as new fees for cdl applications, authorization for chiropractors to conduct medical exams, etc. Definition of conviction changed (F) adds a plea of guilty or nolo contendere accepted by the court Note that this definition is different than the definition under the criminal rules- - a plea is a conviction even if not sentenced and not a final appealable order. Note that unvacated BF, guilty plea, payment of a fine, or the violation of a condition of release already constituted a conviction under prior law. HB 68 CRIMES (2005 H 66, eff ) HB 68 establishes CDL prohibited alcohol concentrations for blood plasma, serum, and urine that apply to the operator of a commercial motor vehicle (not to private vehicles) (.048 of 1% or more per 100 milliliters of blood serum or blood plasma, and.056 of 1% or more per 100 milliliters of urine) (A)(1) & (2). [Prior law had only.04 breath] Note that this applies only to M-1 CLD violations for alcohol. It is not a OVI. Driving ANY motor (must be motor vehicle, not bicycle) vehicle under the influence of a controlled substance is a CDL violation. Previously, it had to be a commercial vehicle (A)(5). For non-cdl drivers, this is essentially a new OVI drugs subsection except that it is a straight MI without mandatory minimums, license suspension, and the other OVI consequences. See (B). This could be a possible section to reduce to in OVI cases, e.g. where prescription medication used by non-cdl driver? Using ANY motor vehicle to commit a felony. Previously, it had to be a commercial vehicle (A)(6). It is not clear what is accomplished by saying if you commit a felony we are going to punish you with a M1; however, that is what the legislature has done. All violations of are M-1 s (B). Important Changes in Commercial Driver s License 2.23

129 NEW DEFINITIONS FOR SERIOUS TRAFFIC VIOLATIONS Major changes to (DD) "Serious traffic violation" (important because 2 serious violations can cause CDL sanctions). Previously serious violations had to be committed in a commercial vehicle. Now if the following violations occur in ANY motor (not bicycle) vehicle they are serious violations and a suspension results. Before telling client on the phone just to pay the ticket or before agreeing to a reduction, need to ask if has or wants to get a CDL. Any speed more than 15 miles over posted limits, again, EVEN IN A PRIVATE VEHICLE (DD)(1). Unlike other subsections, (DD)(1) does not list the state code speed section nor does it expressly include municipal ordinances or speeds in other states. It just says any speed. This could present an opportunity. One could argue, for example that if the legislature meant to specifically include out of state speeds, it could have done so like it did in other sections. See for example (DD)(4) and (5) which expressly include municipal and out of state violations. On the other hand, the state code section was not specified here and the principal that including one excludes the other may not apply. The legislature may have inadvertently made the law more lenient at least in the speeding context. Previously, any 15 mph over commercial speed would have been a serious violation and two would cause a disqualification. The new law is harsher in that private vehicle speeds now count. It is more lenient because there must be a suspension resulting from the conviction before there can be a disqualification. Payable tickets or even those requiring court appearances can not cause a disqualification if no suspension resulted from the conviction. See (D)(5) & (6). See discussion below regarding whether state incorporation of federal regulations results in an elimination of the suspension requirement for speeds. Violation of section [reckless], or [reckless private property] (or any similar law of this or any other state or political subdivision thereof) (DD)(2). As with many subsections in this part, while this particular sub-subsection itself was not changed, the change in wording of the superior subsection gives this subsection a different meaning. For example, while subsection (DD)(2) was not amended, the amendment to subsection (DD) when read in conjunction with this subsection makes any reckless a serious violation, not just recklesses in commercial vehicles. Important Changes in Commercial Driver s License 2.25

130 Violations of any traffic law (except parking) of this or any other state or political subdivision thereof that results in a fatality (DD)(3). Violation of [marked lanes] or [ACDA] (or any similar law of this or any other state or political subdivision thereof) (DD)(6). Violations designated by U.S. Secretary of Transportation. See 49 CFR and 49 CFR These sections only set forth what the states are required to do. They don t actually designate anything themselves. As such, there may be an argument that the feds didn t designate anything, they just told the states what they had to designate. This is not just academic. For example, the federal directive to make a 15 over speed a serious violation does not have the additional Ohio requirement that there also must be a license suspension resulting from the conviction before a disqualification results. If the feds are directing the states to designate what is a serious violation, then it would appear that the serious violation must result in a suspension before a CDL disqualification can result. It would seem useless to have the state requirement if it is automatically vitiated by the federal regulation. Such a construction would make the amendment to require a suspension a nullity. Constructions making legislation a nullity are not favored. On the other hand, if the feds are not directing the states to make a designation, but rather making a designation themselves, then it would appear that two private vehicle speeds 15 over cause a disqualification even if no suspension results from the conviction. There is also a serious question as to whether the state s legislative and/or regulatory authority can be delegated to federal bureaucrats (there is a difference between saying you can make our laws for us as opposed to saying we will choose to change our laws to avoid loosing highway money). If such a delegation is impermissible, then the suspension requirement is still necessary. All of this is probably way too complex to be administered by the BMV. It is anyone s guess as to what will actually happen. Unfortunately, however, an incorrect guess may mean your client s job Traffic Law Update

131 SOME CONSEQUENCES OF SERIOUS VIOLATIONS (D)(6) provides as follows (boldface added): (6)(a) Upon conviction of two serious traffic violations involving the operation of a vehicle other than a commercial motor vehicle by the person and arising from separate incidents occurring in a three-year period, the person shall be disqualified for sixty days if the conviction results in the suspension, cancellation, or revocation of the holder's commercial driver's license or noncommercial motor vehicle driving privileges, which disqualification shall be imposed consecutively to any other separate disqualification imposed under division (D)(5) or (6) of this section; (b) Upon conviction of three serious traffic violations involving the operation of a vehicle other than a commercial motor vehicle by the person and arising from separate incidents occurring in a three-year period, the person shall be disqualified for one hundred twenty days if the conviction results in the suspension, cancellation, or revocation of the holder's commercial driver's license or noncommercial motor vehicle driving privileges, which disqualification shall be imposed consecutively to any other separate disqualification imposed under division (D)(5) or (6) of this section. Note that the aforementioned wording does not say that the conviction must result in a COURT suspension to be a serious violation. What if the conviction causes a noncompliance suspension or a points, or unpaid fine suspension, do these count? If so, payable tickets could count. Pleading a client to 71 in a 55 on the freeway, reckless, or weaving, or ACDA even in a private car can result in a CDL disqualification if the judge does even a minimal suspension and the client has prior CDL or qualifying non-cld violation. This could cost the client his job and cause you much grief. Issues Arising From the Type Of Charge Reduced To This is a tricky area and I suggest you check the statue carefully before proceeding. Here are some principles to consider: 1. Reduction to private vehicle offense constituting a serious violation will cause a 60 day disqualification if has a two serious violation within 3 years or a 120 day disqualification if there are three and a court or other suspension results from the conviction. See (D)(5) & (6). Serious offenses are defined in (GG) which is set forth below. Important Changes in Commercial Driver s License 2.27

132 1. Therefore, a reduction to an enumerated serious offense such as reckless to a 15 over speed, reckless, or weaving, or ACDA even in a private car can result in a CDL disqualification if the conviction results in even a minimal suspension and the client has prior serious violation. 1. As was discussed above, however, an ALS should not count here because it does not result from a conviction. 2. It is still not clear what the phrase conviction results in the suspension means. If the conviction causes non-court suspensions such as points, noncompliance, or an unpaid fine suspension this might potentially be a problem even if there is no court suspension. 2. Reduction to anything not constituting a serious violation will not cause a disqualification even if there is a court suspension. See (D)(5) & (6). 3. Strangely, operation with impaired alertness under does not appear to be a serious violation even thought it theoretically must be committed in a commercial vehicle. On a reduction to a private vehicle reckless, there must be a court suspension. On a reduction to impaired alertness, even a court suspension should not convert the charge to a serious offense. This would be true even if the defendant were in a commercial vehicle. 4. What if the charge is reduced to a charge which is not listed as a serious violation but the judge relates the offense to reckless under and imposes a court suspension? 1. At first glance, it would seem that if the offense was not one enumerated as a serious offense there would be no CDL ramifications even if there was a court suspension (GG)(3)(b) provides that a serious violation includes: Violation of section [reckless], or , or of the Revised Code or any similar ordinance or resolution, or of any similar law of another state or political subdivision of another state 2. The relation to reckless statute [ ] is not one of the enumerated state code sections listed immediately above in (DD)(2). As such, it should not constitute a serious violation for a reduction under the state code. There could be an argument that a municipal ordinance allowing for suspensions for offenses relating to reckless might be a similar ordinance and thus cause a CDL disqualification. Out of state violations could also be a problem Traffic Law Update

133 3. Here is the definition of serious offense under Ohio Rev. Code Ann (GG): (GG) Serious traffic violation means any of the following: (1) A conviction arising from a single charge of operating a commercial motor vehicle in violation of any provision of section of the Revised Code; (2) A violation while operating a commercial motor vehicle of a law of this state, or any municipal ordinance or county or township resolution prohibiting texting while driving, or any other substantially similar law of another state or political subdivision of another state; (3) A conviction arising from the operation of any motor vehicle that involves any of the following: (a) A single charge of any speed in excess of the posted speed limit by fifteen miles per hour or more; (b) Violation of section or of the Revised Code or any similar ordinance or resolution, or of any similar law of another state or political subdivision of another state; (c) Violation of a law of this state or an ordinance or resolution relating to traffic control, other than a parking violation, or of any similar law of another state or political subdivision of another state, that results in a fatal accident; (d) Violation of section of the Revised Code or a substantially similar municipal ordinance or county or township resolution, or of any similar law of another state or political subdivision of another state, that involves the operation of a commercial motor vehicle without a valid commercial driver's license with the proper class or endorsement for the specific vehicle group being operated or for the passengers or type of cargo being transported; (e) Violation of section of the Revised Code or a substantially similar municipal ordinance or county or township resolution, or of any similar law of another state or political subdivision of another state, that involves the operation of a commercial motor vehicle without a valid commercial driver's license being in the person's possession; (f) Violation of section or of the Revised Code, or any municipal ordinance or county or township resolution substantially similar to either of those sections, or any substantially similar law of another state or political subdivision of another state; (g) Violation of any other law of this state or an ordinance or resolution relating to traffic control, other than a parking violation, that is determined to be a serious traffic violation by the United States secretary of transportation and the director designates as such by rule. Important Changes in Commercial Driver s License 2.29

135 PHYSICAL CONTROL & CDL S (physical control) is not specifically listed as a serious offense in (GG). The words physical control are used to define the words drive and driver under (I) and (J), but they do not appear to be used as a reference to the criminal offense. Physical control also is not enumerated in or mentioned directly in (D)(1) which is the section that gives the one year and lifetime disqualifications (D)(1) does list violations and in turn mentions driving a commercial motor vehicle with any measurable alcohol. While the definition of driving does include physical control, (B) makes it clear that is a criminal statute. As such, unless there was a specific conviction, I don t think the (D)(1) disqualification sanctions should result. Given the registrar s interpretation of the aforementioned sections though, this probably can t be ruled out. Another possibility would be if a determination were to be made that the federal government had made physical control a disqualifying offense. I think they just told the states to act rather than acting themselves; however, this could change. Theoretically if the physical control resulted in a fatality it could be a problem under (GG)(3)(c); however, this would be highly unusual and there would probably be other charges that would. If there is no license suspension with the physical control, the CDL might be OK, for example, where the defendant is charged with a straight physical control (not a reduction) and he takes the test so there is no ALS and the judge does not impose a court suspension (technical a court suspension is mandatory for physical controls but there is no minimum length, so some judges don t suspend). Important Changes in Commercial Driver s License 2.31

136 Changes in Traffic and Criminal Law: Legislation and Proposed Rules 3 Honorable Kenneth R. Spanagel Parma Municipal Court Cleveland, Ohio

137 Changes in Traffic and Criminal Law 3.1